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(Geneva)- NepalThe long-awaited transitional justice law, passed by the lower house of parliament on 14 August 2024, contains many positive provisions that will help advance justice, accountability, and redress for the massive human rights violations committed during the 1996-2006 conflict, but there are still some factors that could undermine a successful outcome, Amnesty International, Human Rights Watch and the International Commission of Jurists said today.
To ensure procedural fairness and bring the bill into compliance with Nepali and international legal standards, lawmakers need to address serious accountability gaps. In addition, all institutions involved in the administration of justice—including the courts, the Transitional Justice Commission, and the Attorney General—should ensure that the bill is interpreted in accordance with international law and Nepal’s constitution.
“Transitional justice is long overdue in Nepal, and the new law can be an opportunity to finally provide justice for victims, strengthen the rule of law, and set a positive precedent for the region,” said Meenakshi Ganguly, deputy Asia director at Human Rights Watch. “This should not become another effort to encourage victims to accept compensation without seeking truth and justice.”
one Previous attempts In 2015, the Supreme Court ruled that the Transitional Justice Law, which provided for the possibility of amnesty for serious crimes, was unconstitutional and in violation of Nepal’s international human rights obligations. While the new law contains several significant improvements and positive provisions, parts of it again appear to be aimed at protecting those responsible for war crimes from prosecution.
In Nepal, many survivors and families of violations and abuses have lived in limbo for years, often suffering lasting mental and physical damage and in urgent need of compensation while struggling to learn the truth about their loved ones, gain official recognition, and see perpetrators brought to justice. The lack of accountability for serious crimes under international law contributes to ongoing human rights violations and a wider crisis of impunity.
“Victims have been waiting for nearly 20 years for full recognition and reparation for the harm they have suffered. For the transitional justice process to achieve its goals, all five fundamental pillars of the process must be pursued – truth, justice, reparation, remembrance and guarantees of non-recurrence,” said Mandira Sharma, Senior International Legal Advisor at the International Commission of Jurists. “The current loopholes in the law threaten the outcome of this process and defeat the purpose of providing effective remedies to victims.”
The Transitional Justice Act envisages that donor funding will play an important role in the implementation of the process. Once the Act is finally passed into law, donors and Nepalese authorities should develop and implement a system to oversee the management of transitional justice funds. This will facilitate access to expertise and prevent political and other unwanted interference, particularly in the handling of justice and reparations processes. The law is vague in some respects and lacks detail in many areas, which means that the interpretation and implementation of the mandates of the Truth and Reconciliation Commission and the Commission on Enforced Disappearances will be critical. The appointment of highly qualified and independent commissioners and a secretary for the Truth and Reconciliation Commission will be particularly important early decisions.
It is critical that transitional justice processes are conducted in a robust and independent manner, with safeguards in place to achieve credible and lasting outcomes. Successive governments in Nepal have repeatedly failed to provide truth, justice and reparations for atrocity crimes committed during the conflict. Transitional justice is a major unfinished commitment for the Nepali government. 2006 Comprehensive Peace AgreementIt ended a decade of armed conflict between the then royal government and Maoist rebels and launched a peace process that included constitutional reform.
“In the past, the Commission has failed to gain the trust of victims due to political interference in its appointments,” said Smriti Singh, South Asia Director at Amnesty International. “The Commission must have the trust of victims’ groups if its work is to be effective and credible. This requires victims’ rights and perspectives to be at the heart of a fully transparent nomination and appointment process. The Commission must be competent, impartial and fully independent of any political party.”
Legal flaws
The official name of the new law is Amendment to the Missing Persons Investigation, Truth and Reconciliation Commission Act, 2071The bill, widely known as the Transitional Justice Act, was enacted on March 2023After long negotiations, it was finally passed in the House of Representatives with the support of Nepal’s three major political parties. Civil Society and Victims or their familieswho held varying views on the legislation. While all agreed that progress in addressing their rights and needs was unacceptably delayed, many expressed concern that the law as currently drafted might not deliver justice and called for reforms to the bill.
Under the current bill, crimes committed during the conflict are either categorized as “human rights violations” or “serious human rights violations.” While crimes defined as human rights violations are eligible for amnesty, “serious human rights violations” may be referred to a special court and prosecuted. The definition of “serious human rights violations” is limited to “rape or serious sexual violence”; “intentional or arbitrary killing”; Enforced disappearanceprovided the victim is unaccounted for; and “inhuman or cruel torture”. However, these definitions are inconsistent with international law and exclude other serious crimes. For example, the prohibition of torture and the requirement to criminalize it are absolute, while “inhuman or cruel” torture does not qualify because torture is by its very nature inhumane or cruel.
The Act defines “human rights violation” as “any Serious “Human rights violations committed in violation of Nepali law, international human rights law or humanitarian law” (emphasis mine). In previous versions of the law, such crimes were excluded from prosecution altogether. In the current version, it appears that the Special Court can adjudicate human rights violations that have not been pardoned (not defined as “serious”), and the Truth and Reconciliation Commission can offer amnesties if the alleged perpetrators meet certain conditions (such as disclosing the truth, apologizing to the victims, or paying compensation) and with the consent of the victims. However, the wording of the law is imprecise, and while the expansion of the Special Court’s remit is an improvement, any amnesty for serious crimes is contrary to Nepali and international law and standards and infringes on the rights of victims to effective remedies and reparations.
The law also provides that, in addition to rape and “serious sexual violence,” two categories of offenses (defined as “serious” and “non-serious”) are “targeted or systematically directed against a defenseless individual or community.” This not only exempts many cases from criminal liability, but also other measures under the bill, such as civil and administrative remedies and compensation.
These provisions create a significant accountability gap for many crimes under international law, including the potential Crimes against humanity and War crimesThis violates Nepal’s constitution and its international legal obligations.
At the final stage of negotiations, a clause was inserted into the law allowing the Attorney General to make a binding request to reduce the sentence of a person convicted of a serious offence by 75 per cent, except in cases of rape or “serious sexual violence”. This provision amounts to a disguised amnesty, which violates the principle that criminal sanctions must be proportionate to the gravity of the crime and undermines the fundamental role and capacity of the judiciary. The court shall decide whether the reduction in sentence is appropriate based on its consideration of the facts and the submissions of the parties to the proceedings.
The law now allows the Special Court to hear disputes related to compensation, which is an important expansion of its functions. However, the law still provides that the Special Court can only appoint three judges, which was envisioned when the court had a more limited jurisdiction. As the jurisdiction of the court expands, the number of judges should be increased to carry out its expanded duties.
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