KATHMANDU: International human rights organizations have pointed out that the transitional justice bill does not fully provide justice to the victims and keeps Nepal from fulfilling its obligations under international law.
Although there are some signs of improvement in the bill brought by the Nepal government to amend existing laws related to transitional laws, they say that the current state of the bill cannot provide justice to the victims.
Amnesty International, the International Commission of Jurists, Human Rights Watch and Trial International have appealed to the government and parliament of Nepal to amend the bill so that it conforms to international legal standards.
“Victims and their families, who are anxiously waiting for the amendment of the law in the hope that their demands will be met, are disappointed,” said Mandira Sharma, ICJ’s senior international legal advisor.
Since the Supreme Court of Nepal ruled in 2015 that the current law cannot fulfill Nepal’s internal and international legal obligations on various grounds, including granting amnesty to the perpetrators of serious violations under international law, the two transitional justice commissions have been blocked by successive governments.
Although the new bill removes some of the amnesty provisions that existed before, it is still impossible to prosecute war crimes and crimes against humanity, these organizations said.
Several provisions of the new bill, including restrictions on the right to appeal, would also prevent accountability from being established under international legal standards.
The bill does not provide for a special investigation unit in the Transitional Justice Commission or the Prosecutor’s Office, which is tasked with gathering evidence.
The establishment of investigative units specializing in human rights violations will ensure that investigations are prompt, thorough, and effective in accordance with international human rights laws and standards and that victims have access to effective remedies.
The Bill does not clarify the principle that criminal laws should not have retroactive effect in accordance with international law. This error makes it unclear how the Civil Code can be used to prosecute war-time crimes as mentioned in the bill, and the statute of limitations applies to rape crimes.
“A credible transitional justice process is needed to ensure the right of access to justice and effective treatment for victims who have suffered immensely over years of struggle for justice,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. She said that without making detailed amendments to the bill, it will not address the legal problems that have repeatedly obstructed the transitional justice process.
Dinushika Dissanayake, Amnesty International’s South Asia Deputy Director, said the endless wait of conflict victims and indeed all Nepalese for the truth and justice promised in the Comprehensive Peace Agreement of 2006 has reached a critical point. She emphasized that the Bill should be amended immediately to address the serious weaknesses. She said, “As this bill currently stands, it cannot address Nepal’s long wait for a credible and fair transitional justice process.”
These rights organizations have stated that the Bill contains some positive provisions, including the right to interim relief and compensation for victims, who have not received interim relief. It provides that amnesty cannot be granted for certain categories of violations and provides for special courts to hear cases recommended by transitional commissions, according to those institutions.
There are two commissions established under the Transitional Justice Act, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons Nepal (CIEDP).
The Supreme Court of Nepal rejected some of the flawed provisions of the law, rejecting amnesty for serious violations of human rights and directing that the free consent of the victims should be mandatory in any form of reconciliation. Both commissions have received more than 60,000 complaints from victims.
Unfortunately, not a single complaint has been resolved.
Human rights organizations conclude that the failure to provide transitional justice for more than 15 years has caused deep pain and hardship to the conflict victims and is weakening the rule of law and human rights situation in Nepal.
Although the current bill prevents prosecution of those responsible for serious international crimes in Nepal, under the principle of universal jurisdiction, the judicial authorities of other countries can investigate according to their domestic laws, these organizations said.
“As the Supreme Court has repeatedly mentioned, it is necessary for the parliament to amend the Transitional Justice Bill so that it is in line with Nepal’s own legal standards and international legal obligations,” said Trial International’s Nepal Program Head Cristina Cariello.
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