The Maoist Conflict lasted 10 years but has been over for 16. Two commissions to address transitional justice were set up after the ceasefire, but families of the victims and survivors have got neither truth nor justice.
And now the bill to amend the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation, 2071 (2014) further threatens to narrow the scope of criminal accountability. In fact, some provisions are direct attempts to exempt or provide immunity to perpetrators.
The Bill unfairly classifies torture as humane and inhumane, and has made ‘humane’ torture unforgiveable. This is against the Convention against Torture, to which Nepal is a party. Even killings are divided into ‘brutal’ and ‘ordinary’. The killing of an unarmed citizen or a non-combatant is a war crime, and cannot be selectively categorised. To exclude such killings from the scope of serious crimes is a violation of international legal standards and jurisprudence.
The amendment further proposes that the decision of the special court be final. But there should be a provision to appeal to the Supreme Court. And if punishment has been served under the existing law, a provision in the bill does not allow for further investigation.
In short, war crimes will now be treated as ordinary cases where reinvestigation cannot be arranged once a decision has been made. Another issue with the Bill is the statute on limitations: it stipulates that a decision to prosecute or not be made within six months. A thorough investigation is needed to gather evidence on such a complex matter after all these years and this limit is just not enough.
The provision risks turning prosecution into a mere formality. Even if the case is prosecuted, there may be a low chance of conviction by the court.
To be sure, there are some positive aspects to the Bill. The right to compensation is guaranteed and creating a fund for the investigation of missing persons, truth-telling and reconciliation are good. It says that reconciliation and forgiveness can take place only with the free consent of the victim. There is also a provision for interim relief.
An important suggestion raised in the consultation is the re-appointment of the officers of the Commissions. While re-appointment has been addressed, the selection process is ambiguous enough that it opens doors for political appointees. Reassignment alone is not enough, how the appointments are made makes a big difference.
A must-needed amendment to the 2015 bill was a transparent process for appointing new commissioners to the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons.
In short, the Bill is flawed in terms of punishment, serious crimes and amnesty. It must be brought into conformity with Nepal’s international human rights law obligations and based on the spirit of the Supreme Court’s past precedents.
Otherwise, thousands of families will continue without any closure, truth or justice. Nepal will never resolve war crimes. And Nepalis will perpetually be in a state of confusion and hurt. All of this will tarnish Nepal’s international standing irreparably.
Raju Prasad Chapagain is an active advocate in the field of constitutional and human rights law.
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