What’s wrong with Nepal’s Education Bill?

The School Education Bill, currently being debated in Nepali community as well as parliament, was introduced primarily to implement the

Let’s unite to bring peace in the world

We are at a critical confluence in history. With the world having the highest number of conflicts since World War

Nepal’s journey to democracy and economic prosperity

Nepal, nestled in the lap of the majestic Himalayas, is a country that boasts a history as ancient as time

French ambassador’s eulogy for Nepali athlete:  ‘Palesha, you are a beacon of hope and determination’

We gather here to celebrate an extraordinary milestone—Palesha Goverdhan’s historic achievement in the Paralympic Games in Paris. On Friday, 30th

The toll of climate change in Nepal: Depopulation in Himalayan region, rapid urbanization in hills and Tarai 

The climate, which had changed gradually over thousands of years, is now shifting rapidly. The Intergovernmental Panel on Climate Change

International human rights fraternity call Nepal’s TRC law a ‘flawed step forward’

Amnesty International, Human Rights Watch and the International Commission of Jurists have pointed out provisions that can create a large accountability gap for many crimes under international law, including possible crimes against humanity and war crimes.

Kathmandu: While most ambassadors from the Western countries, including the US, EU, have welcomed the transitional justice bill that was passed into law by the House of Representatives on August 14, as historic and milestone in Nepal’s peace process, three international human rights organizations—Amnesty International, Human Rights Watch and the International Commission of Jurists—have called it a ‘flawed step forward’ and demanded that serious shortcomings should be addressed.

Issuing a joint statement on Tuesday (August 20), they have said that “to ensure the integrity of the process and bring the law into compliance with Nepali and international legal standards, serious accountability gaps need to be addressed by lawmakers.” Also, they have demanded that all institutions involved in the administration of justice—including the courts, the transitional justice commissions, and the Attorney General—should make sure to construe the bill in accordance with international law and Nepal’s Constitution.

“Transitional justice in Nepal is long overdue, and the new law can be an opportunity to finally deliver justice for victims, strengthen the rule of law, and create a positive precedent for the region,” said Meenakshi Ganguly, deputy Asia director at Human Rights Watch. “This should not turn into yet another exercise in which victims are encouraged to accept compensation without truth and justice.”

Acknowledging that the new law includes several significant improvements and positive provisions, they have said that some provisions appear designed to shield those responsible for wartime crimes from prosecution. “In Nepal, many survivors and families of those subjected to violations and abuses have lived in hardship for years, often suffering lasting mental and physical injuries, in desperate need of reparations, while struggling to learn the truth about their loved ones, to receive official recognition, and to see the perpetrators brought to justice,” the statement reads. “The lack of accountability for serious crimes under international law has contributed to ongoing rights violations and a wider crisis of impunity.”

“Victims have been waiting for full acknowledgement of the harms they have suffered and reparations for almost 20 years. For a transitional justice process to accomplish its aims, all of the five essential pillars of this process – truth, justice, reparation, memorialization, and guarantees of non-recurrence – must be pursued,” said Mandira Sharma, senior international legal adviser at the International Commission of Jurists. “Current gaps in this law could serve to threaten the outcome of the process and defeat the purpose of providing effective remedies to victims.”

They have also highlighted the need for appointments of highly qualified and independent commissioners in the Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons.

 “In the past, the commissions have failed to win trust from victims due to repeated political interference in the appointment of the commissioners,” said Smriti Singh, South Asia director at Amnesty International. “The commissioners must be trusted by victims’ groups for their work to be effective and credible. This requires victims’ rights and views to be at the center of a fully transparent nomination and appointment procedure. Commissioners must be competent, impartial, and fully independent from any political party.”

The three organizations have pointed out the following flaws, and possible ways to correct them, in the law:

The new law, officially titled A Bill to Amend the Disappeared Persons’ Enquiry, Truth and Reconciliation Commission Act, 2071, widely referred to as the transitional justice bill, was introduced in parliament in March 2023, and finally passed in the lower house with the support of Nepal’s three largest political parties following protracted negotiations. However, there has been little formal consultation with civil society and victims or their families, who hold a range of views on the legislation. While all agree that progress towards addressing their rights and needs has been unacceptably protracted, many also continue to voice concerns that the law as presently drafted might not deliver justice, calling for reform of the bill.

Under the current bill, crimes committed during the conflict are either classified as “violations of human rights” or “serious violations of human rights.” While offences defined as human rights violations could be granted amnesty, “serious violations of human rights” could be referred to and prosecuted in a special court. The definition of “serious violations” is limited to “rape or serious sexual violence;” “intentional or arbitrary killing;” enforced disappearance, provided that the victim’s whereabouts remains unknown; and “inhuman or cruel torture.” However, these definitions are not consistent with international law and exclude other serious crimes. For instance, the prohibition of torture and the requirement that it be criminalized is absolute and there can be no qualification for “inhuman or cruel” torture, since torture by its nature is inhuman or cruel.

The law defines “violations of human rights” as “any act except serious human rights violations committed in contravention of Nepali laws, international human rights or humanitarian law” (emphasis added). In previous iterations of the law, this category of crimes was completely excluded from prosecution. In the current version, it appears that the special court can adjudicate violations of human rights (not defined as “serious”) that are not granted amnesty, which the Truth and Reconciliation Commission can provide if the alleged perpetrator fulfills certain conditions (such as disclosing the truth, making an apology to victims, or paying compensation), and with the consent of the victims. However, the language of the law is imprecise, and while an expansion of the mandate of the special court is an improvement, any amnesty for serious crimes is contrary to Nepali and international law and standards and violates victims’ right to effective remedy and reparation.

The law also requires that both categories of violations (defined as “serious” and not) – except for rape and “serious sexual violence” – are committed “in a targeted or planned manner against an unarmed individual or community.” This could exclude many cases not only from any criminal accountability but also other measures under the bill, such as civil and administrative remedies and reparations.

These provisions create a large accountability gap for many crimes under international law, including possible crimes against humanity and war crimes, contrary to Nepal’s Constitution and its international legal obligations.

A provision which was added to the law during the final phase of negotiations would allow for the attorney general, excluding in cases of rape or “serious sexual violence,” to make a binding request for a 75 percent reduction in the sentencing for those convicted of serious violations. This provision, amounting to a disguised amnesty, contradicts the principle that criminal sanctions must be proportionate to the gravity of the crime, and also undermines the fundamental role and competency of the judiciary. The court should decide what reduction may be appropriate, if any, based on its own consideration of the facts and submissions by the parties to the proceedings.

The law now permits the special court to adjudicate disputes related to reparations, an important expansion of its role. However, it still provides for the appointment of only three judges to the special court, which was envisioned when the court’s jurisdiction was more limited. With the expansion of the jurisdiction of the court, the number of judges should be increased to fulfill its expanded mandate.

[Related: Nepal’s federal parliament endorsed TRC bill. Here are key strengths and concerns.]

[Related: International community lauds passage of transitional justice bill by Nepal parliament]