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Nepal: Proposed Bill to Give Amnesty to Perpetrators

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Nepal Government’s proposed bill on the Truth and Reconciliation Commission gives provisions to grant amnesty to the perpetrators of human rights violations committed during the 10 year armed conflict, denying victims’ right to truth, justice and reparation.
In June 2007, Nepal’s Ministry of Peace and Reconciliation drafted a bill to make provisions for the Truth and Reconciliation Commission (TRC). According to the bill, the Ministry of Peace and Reconciliation is mandated to implement the recommendations of the Commission. The provisions of the draft bill, however, are not in line with the international human rights standards and are against democratic principles.

The bill proposes the creation of a TRC with a mandate to investigate gross violations of human rights and crimes against humanity committed during the course of the armed conflict between 13 February 1996 and 21 November 2006. According to the draft bill, the Commission, upon the completion of its work, will report its findings and make recommendations to the government in the areas of reconciliation, prosecution, amnesty and reparations. The draft also proposes a Reconciliation and Peace Building Fund to finance implementation of the recommendations.

Amnesty for Crimes Against Humanity?

The bill is likely to provide amnesty to the perpetrators of gross human rights violations and violations of international humanitarian law, including extrajudicial execution, torture and disappearances. It intends to grant amnesty to the perpetrators, preventing prosecution for these offences, an act that is inconsistent with Nepal’s obligations under international law. Some provisions—clause 15 (preventing powers of the commission) and 25 (recommendations for amnesty)—when taken together allow perpetrators to escape justice, at least as far as TRC is concerned.

According to the proposed bill, the TRC can make recommendations for amnesty to anybody found guilty of human rights violations or crimes against humanity while performing his/her duty or for any political achievement on which lasting peace cannot be ensured.  There are no provisions to prevent perpetrators in the army and police from seeking amnesty in the name of abiding by one's duty, and CPN (Maoist) from citing political motives and insisting on reconciliation. The bill is silent over these considerations.

The compulsions of duty and political motives cannot be overlooked. "Politics and crime have been taken as synonyms of one another and the provision is also contradictory. If an act is termed a 'gross violation of human rights' or a 'crime against humanity', no amnesty can be allowed under international human rights norms” says Bhimarjun Acharya, an expert on constitutional and human rights law1.

The provisions of the draft are inconsistent with Nepal’s international treaty obligations to ensure the right to truth, justice and reparation and also inconsistent with international best practices with regard to the establishment and operation of truth commissions. Numerous provisions of the bill limit the independence, impartiality and competence of the TRC.

Nepali human rights defenders and legal experts have criticised the bill for putting too much emphasis on amnesty, contrary to the international norms where amnesty is the exception and not the rule. The proposed bill will only bolster the culture of impunity as it smacks of political compromise at the expense of the rule of law. "Crimes against humanity is a non-excusable offense; so the question of amnesty does not arise at all," Hari Phuyal, an expert on international human rights law, points out. He further says, "And what does the draft mean by crime against humanity and gross violation of human rights?"

Ignoring Input

Recommendations of the Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal) have been ignored in the draft. "Among other major concerns regarding the bill is the lack of safeguards regarding independence, impartiality and diversity of the Commission, both in relation to the selection of commissioners and in relation to operational and financial matters. According to the bill, the commissioners will be selected by a government-appointed body that may consist of political actors, rather than a diverse group that is representative of society," OHCHR-Nepal said, calling upon the government to take concerns raised by human rights organisations and civil society into account.

OHCHR-Nepal raised the UN’s policy of not endorsing or condoning amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor undertaking or encouraging activities that might foster them. 
One of the most serious drawbacks of this draft is that none of the victims or their families have been consulted.  Such Commission should be formed after a wide consultation not only with experts but also with the people at the grass-roots level and in particular the victims of armed conflict. TRC would not be meaningful and credible unless the victims are consulted on its nature, mandate and goals.

The bill has a provision that the compensation would be given after consultation with the perpetrators, which is absolutely against the standards and norms relating to the protection of victim and witness. Informal Sector Service Centre (INSEC), a national level NGO and member of FORUM-ASIA in Nepal, said the bill has not encompassed the rights of the victims and stressed the need to ensure victims' rights, mainly their participation, involvement, decision making and leadership in over all process. A victim-centric approach, missing from the current draft, is needed to make the TRC worthy in establishing the facts and facilitating reconciliation. Hearings should be conducted openly, and closed-door hearings can be done only at the desire of victims and/or their families if there is a need.

Moving Forward

INSEC, in a recent publication titled “NEPAL: Comments and Suggestions on draft Bill made for making provisions relating to Truth and Reconciliation Commission”, has suggested that the government enact legislation on impunity and victims' reparation with provisions for amnesty, ways of reparation and defining its standards, before passing the TRC bill2. One of the aims of the TRC should be to address past violations but the draft bill has totally ignored the issue of justice and prepared to deal with future violations.

Human rights defenders, the OHCHR-Nepal and the European Union among others have expressed serious concern over the draft and urged the government ensure a competent TRC that would not neglect the rights of victims of the armed conflict in Nepal and contribute to ending impunity.

The Comprehensive Peace Accord (CPA) signed between the Nepal government and the Communist Party of Nepal (Maoist) that formally put an end to the decade-long conflict in November 2006, the Interim Constitution of 2007 and the Common Minimum Programme of the Interim Government of 2007 have provisions to establish the TRC to ascertain the truth about the cases of human rights violations and create conditions propitious for national reconciliation. As per the spirit of the CPA, the Interim Government on 6 May 2007 formed a Task Force coordinated by Joint Secretary of the Ministry of Peace and Reconstruction, with a mandate of drafting legislation on TRC.