Rights groups call Nepal’s peace bill a ‘flawed step forward’

When Nepal’s transitional justice law was finally adopted by Parliament on 14 August, it was immediately welcomed by politicians across party lines and the international community. But in a joint statement Amnesty International and Human Rights Watch (HRW) have said it has ‘serious flaws … and implementation is key’.

The United States, European Union, British and the United Nations in Kathmandu wasted no time last week to hail the cross-party agreement. What surprised many was that even the Chinese Embassy in Kathmandu, which usually does not comment on human rights issues, welcomed the law.

Amnesty and HRW do admit that the law ‘incorporates positive provisions’ on accountability and justice to redress war crimes and human rights violations committed during the Maoist conflict between 1996-2006, but say ‘serious accountability gaps’ still need to be addressed so it is in compliance with Nepali and international law.

“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 of the New York-based HRW. “This should not turn into yet another exercise in which victims are encouraged to accept compensation without truth and justice.”

In 2015, Nepal’s Supreme Court found a previous attempt to pass the bill as unconstitutional because of blanket amnesty for heinous war crimes in violation of Nepal’s international human rights obligations. The two groups say that while the new law improves on the previous draft, parts of it still protect perpetrators of war crimes.

“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, memorialisation, and guarantees of non-recurrence – must be pursued,” said Mandira Sharma, 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.”

The main criticism is the ‘vagueness’ of the law that leaves much to interpretation of the mandates of the Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons. The two commissions have in the past been stymied by political interference and lack of commitment to justice for survivors. 

‘The appointments of highly qualified and independent commissioners, and of the Truth and Reconciliation Commission secretary, will be especially important early decisions,’ the joint statement says, hinting that because the same political parties are in power the lack of political will could be a problem again.

Transitional justice is a major outstanding commitment of the Comprehensive Peace Agreement signed 18 years ago which ended the decade-long armed conflict between the then royal government and Maoist rebels in which 17,000 people were killed and nearly 1,400 are still listed as missing. 

“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 of 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 new law (Amend the Disappeared Persons’ Enquiry, Truth and Reconciliation Commission Act, 2014) was tabled in Parliament in March 2023, and finally passed in the last week with the support of the former warring sides: the Maoists, the Nepali Congress (NC) and the UML. The NC and the UML are now in government, and the Maoists are once more an opposition party. 

The statement says there has been little formal consultation with civil society and victims or their families, many of whom have 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 human rights violations could be granted amnesty, the serious violations like rape, inhuman torture, enforced disappearances or arbitrary killing can be prosecuted in a special court. These definitions are not considered consistent with international law and exclude other serious crimes like torture which cannot be graded.

The special court can also pardon perpetrators of ‘not serious’ human rights if they fulfill certain conditions (disclosing the truth, expressing remorse or paying compensation) and with the consent of the victims.

The statement says that the language of the law is imprecise, and amnesty for serious crimes is contrary to Nepali and international law.

The law could also exclude many cases from criminal trial 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,’ the statement adds.

Another provision wojld allow Nepal’s attorney general to request a 75 percent reduction in the sentencing for those convicted of serious violations, excluding rape. Amnesty and HRW call this a ‘disguised amnesty'; and say it 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.