Last week, Nepal’s political parties took a much awaited decision toward adopting legal framework for long pending transitional justice issues.
Nearly two decades after the end of the Maoist conflict following the signing of Comprehensive Peace Accord (CPA) in 2006, conflicting parties finally reached an agreement to amend the Enforced Disappearances Inquiry, Truth and Reconciliation Commission Act of 2014.
On 14 August, Nepal’s House of Representatives, the lower house, endorsed the bill to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act by a majority vote.
With the adoption of a new bill, Nepal’s long struggle to conclude the transitional justice process has embarked on the direction to establish a transitional justice process.
While the adoption of the bill has been lauded by political parties, diplomatic communities and other stakeholders, a section of conflict victims has raised objection to the bill. They are not fully convinced that the bill can address truth and justice issues in all the right way. Questions have been raised about the motive of the political parties and whether the TRC law will be fully implemented.
Here is a brief analysis on the major areas that the bill has incorporated and key recommendations:
The Parliamentary Committee on Law, Justice, and Human Rights, under the House of Representatives, approved recommendations for reforms to the Bill titled “Commission of Inquiry on Enforced Disappearances, Truth and Reconciliation” (hereafter referred to as the TRC Bill). The bill was tabled by the government on March 9, 2023, and several parliamentarians submitted proposals to amend various provisions. Victims, civil society organizations, and international human rights organizations also voiced concerns over certain provisions and called for further consultations and amendments. In response to these concerns, Parliament referred the bill to the Law, Justice, and Human Rights Committee for deliberations and review. The Committee then formed a sub-committee to consult further and build consensus on some of the bill’s provisions. The sub-committee presented its report to the Committee, highlighting issues they deemed important for political leaders to resolve.
In early July, a Task Force comprising leaders of three major political parties (Ramesh Lekhak from Nepali Congress, Janardan Sharma from the Maoist and Ramesh Bartaula from the UML) was established to work on the bill and forge consensus on the issues raised by the parliamentary sub-committee. On August 8, 2024, the Task Force submitted its report to the leaders of the major political parties. The following day, the Parliamentary Committee approved the recommendations.
Then on August 14, parliament passed the bill.
This development marks a positive step forward, with major political parties coming together on some issues they had previously contested. The proposals by the Task Force and the Committee addressed some of the concerns raised by victims and civil society. However, some issues with the potential to undermine Nepal’s international obligations remain unaddressed.
Victims and CSOs in Nepal continued to argue that the bill should be passed only after addressing these outstanding concerns.
The bill now passed classifies human rights violations under the Act into two categories: “violation of human rights” and “serious violation of human rights.” “Violations of human rights” is defined as “any act except serious human rights violations committed in contravention of Nepali laws, International Human Rights, or Humanitarian Laws during the armed conflict by the parties to the conflict targeting unarmed persons or communities in a planned manner.”
“Serious violations of human rights” is defined as the following acts committed by parties to the conflict during the armed conflict: 1 Rape or serious sexual violence, 2) The acts committed by parties to the conflict and targeted against an unarmed person or community or in a planned manner such as: (a) Intentional or arbitrary killing (b) Forcibly disappearing a person, with a clarification that “forcibly disappearing a person means a person disappeared by parties to the conflict whose whereabouts remain unknown” and (c) Inhuman or cruel torture.
The bill has included serious forms of sexual violence under serious violations, removed the threshold of “unarmed,” “civilian,” and “targeted” in cases of rape and serious forms of sexual violence, replaced the term “murder with torture or cruelty” with “intentional or arbitrary killing” and removed the list of violations from human rights violations.
Some issues, however, remain unaddressed or pending. First, the thresholds of “unarmed,” “civilian,” and “targeted” remain for other violations, except for rape and serious forms of sexual violence. These should be removed. Second, many other violations that may amount to serious violations under international law are not included in the definition of serious violations. The non-inclusion of war crimes and crimes against humanity in the jurisdiction of the TJ mechanisms, and the narrow definition of serious human rights violations, could lead to many violations being categorized as human rights violations and thus eligible for amnesty, which is contrary to international law. Therefore, the list of serious human rights violations should be expanded, or war crimes and crimes against humanity should be included under the jurisdiction of the TJ mechanism. Third, the definition of enforced disappearances has been narrowed, now only including those whose whereabouts remain unknown. Those who were disappeared for months and years but surfaced later are not discussed. They should not be excluded from the jurisdiction of the CIEDP.
The jurisdiction of the Special Court has been expanded. This is a welcome change for it addresses the issue of individuals involved in human rights violations enjoying de facto blanket amnesty and provides redress to victims dissatisfied with reparation. The bill proposes changes to several sections, expanding the Special Court’s jurisdiction to: a) Adjudicate serious human rights violations cases filed by prosecutors, b) Adjudicate other human rights violations not eligible for amnesty and c) Adjudicate complaints related to reparation.
But here is a major concern. The bill proposes a three-judge Special Court to hear cases. This was originally envisioned when the court’s jurisdiction was limited to serious human rights violations. With the expanded jurisdiction, a three-judge panel will not be sufficient.
In this circumstance, we propose the following recommendations. First, a provision should be included to increase the number of judges in the Special Court as needed. The proposal in the bill states that the Attorney General or a public prosecutor authorized by them may, except in cases of rape or serious sexual violence, request 25 percent of the punishment prescribed by the prevailing law for serious human rights violations, considering the circumstances at the time of the incident, the reasons, and the principles of transitional justice. The problem with this proposal is that it contradicts the universal principle of issuing sentences proportionate to the gravity of the crime, raising doubts about whether the sentencing could effectively address impunity for gross human rights violations. It could also undermine the independence of the judiciary as the court should decide the sentencing and mitigation of sentencing depending on assessment of the fulfillment of the conditions set for such mitigation.
Second, there is a provision that the prosecutor could claim reduced sentencing, explaining the perpetrator’s cooperation with truth-seeking, evidence collection, willingness to provide reparation, and requires the Special Court to mitigate sentences. This provision should be removed as it undermines the role of the judiciary to make decision on sentencing.
There, however, are some positive provisions: The new bill states that the tenure of the Commissions will be four years, extendable if they are unable to fulfill their mandates within this time. The Commission can establish offices in provinces and districts as required. Interim relief and reparation are extended to child soldiers named “bahirgramit bekti,” families of security forces, and those injured after the signing of the CPA as a result of landmine explosions from the conflict.
However, activists and victims argue that vetting should be included as a form of punishment that the Special Court can impose for human rights violations. Obligation of state agencies to cooperate with investigations and strengthen the contempt power of the TRC should be included. Any person against whom prosecution is filed (if they are still in a public position) should be suspended until the case is decided.
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