Rights organisations say transitional justice amendment bill disregards domestic and international legal standardsDemand its revision after a proper consultation before House endorsement.
Human Rights organisations have expressed objections to the bill presented by the government to amend Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act saying that the legislation does not fully meet the country’s domestic law or international legal obligations and will not provide justice for victims if adopted in its current form.
In a statement issued on Thursday, three rights organisations–Amnesty International, Human Rights Watch, and the International Commission of Jurists– said that the transitional justice bill if adopted in its current form, will not provide for the effective prosecution of serious crimes under international law.
The rights groups also said that the government has failed to consult conflict victims about the content of the draft legislation which has undermined the credibility of its current approach.
“The bill should not be adopted in its current form; instead, it should be revised to comply with Nepal’s Supreme Court rulings and international human rights law and standards,” reads the statement. “In addition, the revision process should ensure adequate consultation with conflict victims about the content of the proposed legislation.”
The government, on March 9, had registered a bill to amend the Act in the House of Representatives.
The amendment bill, which retains most of the “controversial provisions” from the previous bill that couldn’t get through the parliament last year, was presented in the lower House on March 19 by Minister for Communications and Information Technology Rekha Sharma acting on behalf of Prime Minister Pushpa Kamal Dahal, claiming it does not have provisions for amnesty in cases involving serious violations of human rights.
“Key provisions of this bill appear to be designed to shield alleged perpetrators from prosecution for some of the most serious crimes under international law,” said Dinushika Dissanayake, Amnesty International’s deputy regional director for South Asia. “If it is rushed through parliament without significant changes, it cannot be the basis for a process that has the support of conflict victims, nor legal credibility at home or abroad.”
The new bill, like the previous one, has not listed murder as a serious human rights violation, thereby leaving it as a crime fit for amnesty. It has instead listed cruel murder or murder after torture, rape, enforced disappearances and inhumane or cruel torture as serious rights violations. Those involved in serious rights violations will get prosecuted and not be considered for amnesty.
Murder, sexual violence, physical and mental torture, extrajudicial custody and other crimes, however, have been listed as cases of violations and are amnestiable if the victims give their consent.
“Despite this, the government, which includes the Nepali Congress party as a major coalition partner, reportedly plans to adopt the current draft without amendments through an “expedited” process,” reads the statement.
A Supreme Court verdict in 2015 struck down around a dozen amnesty provisions in the Act, directing the government to amend it in line with international standards and practices. It asked for the categorisation of violence as serious and non-serious and worthy of amnesty and unworthy of amnesty, depending on their severity.
The Comprehensive Peace Agreement that ended the war included a commitment to set up a truth and reconciliation commission “to investigate [the] truth about people seriously violating human rights and involved in crimes against humanity.”
However, successive governments made little effort to amend it, for years.
The rights groups, in the statement also pointed out that some aspects of the bill can be the basis for progress.
“The bill guarantees the right to reparation and interim relief for some victims who were left out of earlier relief packages. It also guarantees the right of the families of “disappeared” persons to their relative’s property. The bill also mandates Nepal’s Truth and Reconciliation Commission to study the root causes and impact of the conflict and recommend institutional reforms,” reads the statement.
The truth commission has received 63,718 complaints, while the number of cases at the disappearance commission is far lower—just 3,223. But the disappearance commission is investigating only 2,484 cases, saying the others do not fall under its jurisdiction.
Pointing out that there have been almost no successful prosecutions of serious crimes under international law since the conflict ended in 2006, the rights organisations said that the bill would allow many people allegedly responsible for abuses amounting to crimes under international law to evade justice.
“It would result in the Nepali justice system continuing to abandon many victims and survivors, some of whom have waited two decades for truth and redress,” reads the statement.
Meenakshi Ganguly, South Asia director at Human Rights Watch said that after over 16 years Nepali political leaders should know that only a credible and legitimate justice process will successfully complete the peace process.
“Once again, Nepal’s political leaders are attempting to legislate an escape hatch for some of those responsible for serious crimes under international law. It should be clear to them that only a credible and legitimate justice process will successfully complete the peace process,” said Ganguli.
The rights group have also pointed out that the two commissions will have just two more years to complete the investigations, including collecting evidence of “serious violations of human rights” that must be tried in the special court, which human rights defenders think will not be enough for investigating all cases.
The rights organisations have also called on the United Nations and Nepal’s diplomatic partners to make it clear to the government that only a process that meets international legal standards can receive international support and recognition, and insist on justice for serious crimes under international law so that victims have the opportunity to see perpetrators held to account.
The long delay in providing justice for conflict era violations has helped to entrench impunity and, therefore, undermine the rule of law in Nepal, the groups said.
“Until a credible justice process for conflict-era crimes is established, Nepal’s existing justice system should ensure access to effective remedies and reparations for victims,” reads the statement. “As domestic avenues to justice continue to be blocked, prosecutors in other countries should investigate and seek to prosecute international crimes committed in Nepal under the principle of universal jurisdiction.”
The rights groups also showed concern that if the amendment bill is passed as it currently stands it is unlikely to be accepted by victims, by Nepal’s Supreme Court, or by domestic or international civil society human rights organizations.
“The victims of egregious human rights abuses during Nepal’s armed conflict have waited far too long for truth, reparations, and justice,” said Mandira Sharma, Senior International Legal Adviser at the International Commission of Jurists. “The government of Prime Minister Pushpa Kamal Dahal and other political parties in parliament should recognize that and pass the legislation only after revising the bill to meet victims’ needs and ensure respect of Nepal’s international and domestic legal obligations.”