Nepal TJ Bill protects perpetrators, shortchanges survivors

Nepal’s transitional justice amendment bill does not adhere to domestic or international laws, and its current draft will not adequately persecute perpetrators of crimes committed by the Maoist and state security forces during the decade-long armed conflict, said international human rights organisations on Friday.

The bill must be revised to comply with Nepal’s Supreme Court rulings and international human rights laws while ensuring consultation with conflict victims and if passed in its current form will not be accepted by the judiciary, civil society, or conflict survivors, stated Amnesty  International, Human Rights Watch, and the International Commission of  Jurists.

The  Bill for the Amendment of the Investigation of Enforced Disappeared  Persons, Truth and Reconciliation Commission Act (2014) was presented before parliament on 19 March. Prime Minister Pushpa Kamal Dahal’s coalition government, which introduced the amendment bill in the House,  plans to expedite the bill drafted by Govinda Prasad Sharma Koirala  ‘Bandi’ through Parliament.

There have been negligible prosecutions of serious crimes under international law since the end of the armed conflict in 2006. More than 140 victims have sought justice for the disappearance and the extra-judicial killings of their loved ones through the regular courts, but successive governments have blocked progress, arguing that conflict-era cases are under the purview of transitional justice law.

“Key provisions of this bill appear to be designed to shield alleged perpetrators from prosecution for some of the most serious crimes under international law,” said Dinushika Dissanayake, Amnesty International’s deputy regional director for South Asia. “If it is rushed through  parliament without significant changes, it cannot be the basis for a  process that has the support of conflict victims, nor legal credibility  at home or abroad.”

 Forty-two conflict victims’ organisations had issued a joint statement condemning the bill on 15 March, calling it a betrayal of conflict victims and a denial of their right to justice.

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The government had failed to consult conflict victims about the content of the legislation, leading victims’ groups, lawmakers, and human rights experts to identify and express concern over the draft bill after the fact in July last year. A parliamentary committee had begun necessary changes on a previous draft as a response, but the House was dissolved before the legislative proposals came to a vote ahead of the November  2022 federal elections. 

“Once again, Nepal’s political leaders are attempting to legislate an escape hatch for some of those responsible for serious crimes under international law,” said Meenakshi Ganguly,  South Asia director at Human Rights Watch. “After over 16 years of  trying and failing with this strategy, it should be clear to them that  only a credible and legitimate justice process will successfully  complete the peace process.”

Per the latest draft of the bill, crimes committed during the conflict will be investigated by the two transitional justice commissions— Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP)—while “serious violations of human rights” would be prosecuted in a special court.

But while crimes such as rape, enforced disappearance, “cruel or inhuman torture,” and “killing of somebody after cruel torture or killing of somebody in a brutal manner” are classified as “serious violations of human rights” — the bill excludes numerous crimes under international law— providing amnesty for murder, sexual violence “not amounting to rape”, beating and mutilation, abduction, arson, forced displacement, as well as illegal detention.

Nepal’s two transitional justice commissions have received over 60,000  complaints regarding conflict-era human rights and international humanitarian law violations. However, not a single investigation has been completed so far. If the amendment is fast-tracked, the commissions will only have two more years to complete pending investigations that must be tried in the special court.

As it stands, the amendment bill in its current form has no plans to establish a special investigation unit to collect evidence, does not clarify how the principle of non-retroactivity of criminal law would be in line with international law and has not explained which applicable law would be used to prosecute those involved in serious crimes. The bill also enables the government to consult the Judicial Council to appoint judges to the special court as opposed to through a  constitutionally-required independent process.

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“The victims of egregious human rights abuses during Nepal’s armed conflict have waited far too long for truth, reparations, and justice,” said Mandira Sharma, Senior  International Legal Adviser at the International Commission of Jurists.  “The government of Prime Minister Pushpa Kamal Dahal and other  political parties in parliament should recognize that and pass the  legislation only after revising the bill to meet victims’ needs and  ensure respect of Nepal’s international and domestic legal obligations.”

However,  some aspects of the current bill— such as reparation to victims previously ineligible for relief packages, as well as the right of the families of “disappeared” persons to their relatives’ property — shows progress in transitional justice, the human rights groups noted. The bill also mandates that Nepal’s Truth and Reconciliation Commission study the causes and impact of the conflict and recommend institutional reforms.