The recent agreement among the three major political parties of Nepal - Nepali Congress, CPN-UML and UCPN-Maoist, on removing the clause prohibiting amnesty for conflict era serious violations of International Human Rights and Humanitarian laws from the proposed bill of Truth and Reconciliation Commission (TRC), has once again proved the apathy on the part of the State towards providing justice to the sufferers of the decade long armed conflict. It has also greatly dishonored the universal principles of human rights, justice, rule of law and the rights of the victims to get remedy through the means of law as well as hindered the true spirit of social healing awaited for a long time. Such act of key political actors seems to conform the 'rule of jungle' or 'might is right', if not less, at the same time. The victims are being demoralized as there is delay to pass this bill by the legislative parliament. Similarly the goal of rediscovering the society's fabric via social healing might remain unmet and suffering of the people will be prolonged.
Undoubtedly, the notion of justice is one of the most contested issues in the arena of legal and political philosophy. It is widely accepted norms of International Criminal Law and Victimology that the justice system should always be victim oriented and should serve their interests while providing remedy to them. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 art. (4) states that “victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered”. This principle has ensured the access to justice and the fair treatment to the victims. In order to provide justice to the concerned, it further adds that judicial and administrative mechanisms should be established and strengthened by the state whereby the victims should also be informed of their rights in seeking redress through such mechanisms.
However in case of Nepal, the State is trying to escape from its obligation than to prosecute the accused and punish the perpetrators of the gross human rights violation during insurgency as it has thrown the ball to the victims' court; either to prosecute or provide pardon or amnesty to the culprits, is the choice of their own domain. It clearly shows that the state is just willing for the safe-play and face saving rather than coming up with the promising role of the guardian of its citizens and respect for their human rights. This is like a hiding of the tail. On the other hand, this has seriously raised a great question over the intention of the major political parties and the government of Nepal that what they really want to do in the name of TRC? What kind of justice will victims receive from it; hypothetical or justice in real?
Under the various sources of international law and under United Nations policy, amnesties are impermissible if they: (1) Prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights, including gender-specific violations; (2) interfere with victims’ right to an effective remedy, including reparation; or (3) restrict victims’ and societies’ right to know the truth about violations of human rights and humanitarian law. Moreover, amnesties that seek to restore human rights must be designed with a view to ensuring that they do not restrict the rights restored or in some respect perpetuate the original violations.
By conferring all of the decisive powers relating to the war era crimes to the victims does not necessarily mean that it will ensure justice for them. But it can have an adverse effect. Bringing victims into the forefront means that to torture them further as they are the weak and vulnerable people who cannot go against the strong perpetrators' will without the support of the state due to multiple factors such as security, lack of knowledge of the procedures and processes relating to the prosecution and so on and so forth. Unfortunately, it will surely increase a tension to them because of the undue influence and pressure of the perpetrator made to them to come for negotiation though they might not be willing to do so. Who will provide the guarantee of that it won't happen where State remains absent?
Nepal is a party to the Geneva Conventions of 1949 but she has not yet ratified two additional protocols to it. Amnesties that prevent prosecution of war crimes, also known as serious violations of international humanitarian law, whether committed during international or non-international armed conflicts, are inconsistent with States’ obligations under the widely ratified Geneva Conventions of 1949 and their 1977 Protocols, and may also violate customary international law. Although grave breaches can be committed only during international armed conflicts, serious violations of the rules of humanitarian law that apply to non-international armed conflicts are also war crimes. Rules of humanitarian law governing non-international armed conflicts are set forth in common article 3 of the four Geneva Conventions of 1949 and the 1977 Additional Protocol (II) to them. Some are also recognized under customary international law as serious violations of the “laws and customs of war."
Under the Rome Statute, murder, enforced disappearance of persons, deportation or forcible transfer of population, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identifiable groups that are universally recognized as impermissible under international law, other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health are considered as crime against humanity. Here non-ratification of the Rome Statute mere cannot immune Nepal from her obligation to end impunity through the application of proper national as well as international instruments, available.
As Universal Declaration of Human Rights (UDHR) Article 8 maintains that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him or her by the constitution or by law. Furthermore Nepal Treaty Act, 1990 section 9 provides that the treaty provisions shall be enforceable as good as laws in case of the provisions of a treaty, to which Nepal or Government of Nepal is a party. Upon its ratification accession, acceptance or approval by the Parliament, the inconsistent provision of the law shall be void for the purpose of that treaty and then treaty provisions prevail. So Nepal cannot refrain from fulfilling the obligation created on its part by various human rights treaties to which it is a party and from the scrutiny of the international community, by calling it just lacking of domestic laws. Can there be double standard of human rights for Nepal? No, never.
(The author Laxman Lamichhane is an Advocate. He is pursuing LL.M. in International Human Rights Law from Tribhuvan University) . Thanks the author.