By Dr Gyan Basnet Ph.D.
In Nepal, during their recent ten-year conflict, both state and Maoist forces committed gross violations of human rights, including mass killings and rapes. Statistics and reports show that the conflict witnessed over 18,000 deaths and a multitude of crimes such as kidnapping, extortion, arson, demolition of infrastructures, possession and destruction of property, extra-judicial killing, displacement, forced recruitment, and the disappearance of hundreds of people. Every state has a duty to promote, implement and ensure respect for international law. It must ensure that its laws are consistent with international law, and it must protect victims of conflict in accordance with its international obligations. Truth and reconciliation commissions (TRC) are regarded as essential for achieving justice and reconciliation in a post-conflict society: they proclaim the establishment of the new democratic order that will form a break with the violent past.
A few weeks ago, Nepal’s government passed an ordinance that seeks to establish such a TRC as part of our transitional justice following the decade-long Maoist insurgency. Of huge legal and political significance is the intended empowerment of the TRC to grant an amnesty for serious crimes, including those under international law. Such an amnesty would undoubtedly deny justice to many victims of the insurgency, and it immediately raises the following questions. Should establishment of the TRC not await greater political consensus and the agreement of all to co-operate? Is the controversial move to establish both TRC and Disappearance Commission by ordinance not driven by evil intent?
Whether they are to achieve lasting peace and democracy in their country must depend very much on how they address their transitional justice issue. The idea of setting up a TRC by ordinance has already attracted the attention of national and international human rights organizations and activists who fear that the government is intent on granting a blanket amnesty to all wrongdoers. Many more questions must be asked. Is it possible to consolidate peace and democracy in the country without addressing the grievances of victims through a justice mechanism? Is the right to establish the truth not an important element of the right to justice and peace? Does any denial of the truth not amount to a gross denial of justice? Is the proposed TRC by ordinance not just contrary to the norms of international practice, international human rights and humanitarian law, but to the soul of the Nepal’s Interim Constitution of 2007, to the order of the Supreme Court of five years ago and, most importantly, to the rights and will of the victims? Is it not one of their greatest paradoxes, and should their people not demand a serious explanation from government?
During the decade long insurgency, both Maoist and government forces seriously violated human rights, and victims still bear the cost of the insurgency. In granting ‘justice’ to the violators by treating them as political criminals, the government has undermined the basic legal rights of every victim. Granting an amnesty to those responsible can in no way provide justice to victims of such a multitude of human rights abuses.
It is said that ‘justice, peace, and democracy are not mutually exclusive objectives, but rather a mutually reinforcing imperative’. Strengthening the rule of law and building the people’s trust in state institutions are both absolutely necessary in the struggle for a workable and just society. If they ignore these values now it shall hamper the construction of a national community of free and equal citizens in a plural democracy set on a path to development. The establishment of transitional justice mechanisms by ordinance can only push the nation towards a greater crisis brought about by the evil intent of the present puppet government. In any case, how could they be sure that any future TRC by ordinance can either be independent or fair?
Granting Amnesty: Mockery of Justice
The proposal to grant amnesty to serious violators of human rights and humanitarian law is against the norms of constitutionalism. International human rights law does not permit an amnesty, especially an amnesty for gross violations of human rights and serious violations of international law. Any process of transitional justice that provides such an amnesty for the perpetrators of serious human rights violations and war crimes is, therefore, contrary to Nepal’s commitments under international law, international human rights law and humanitarian law.
The ordinance to establish a TRC with the provision of an amnesty is not acceptable. Any amnesty that prevents establishment of the truth through investigation and the identification and prosecution of those responsible for violations is ruled out under international human rights and humanitarian law. Such an amnesty can only contribute to the perpetuation of impunity, the denial of victims’ rights to reparation and justice, and the sacrifice of any hope of lasting peace.
The United Nations Human Rights Committee on Blanket Amnesties stated: ‘Amnesty prevents appropriate investigation and punishment of perpetrators of past human rights violations, undermines the efforts to establish respect for human rights, and contributes to an atmosphere of impunity among the perpetrators of human rights violations.’ An amnesty is possible only after ensuring that those responsible for serious crimes under international law have been prosecuted, tried and duly punished.
Restoring Rule of Law and a Viable Democracy
The civil conflict in Nepal has been so huge that a fully comprehensive approach to peace, justice, and reconciliation is now essential. The justice and reconciliation processes must move hand in hand if they are to achieve complete justice and peace. Huge national and international pressure must be exerted on this government to establish transitional justice mechanisms that comply fully with the standards of international human rights and humanitarian law. Establishing the TRC by ordinance can only weaken the ground for human rights and lead eventually to general amnesties for any criminal activities recorded in the conflict-era.
The future TRC in Nepal must be anything but a talking shop. Establishing a TRC for the sake simply of having a TRC will not be enough. The norms and values of international human rights law and international established traditions must be strictly followed. The most urgent task now is for them to rescue Nepal’s politics from the hands of the puppets. They need now to liberate their country from its old dogmas and to help build a united, harmonious and sustainable nation. If the transition process is to create a solid foundation for a viable democracy, the truth gathering process must be followed by concrete measures to end impunity and build the rule of law.
Dr Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected].