April 3, 2012
The Asian Human Rights Commission wishes to express its concern toward the scrapping of the provision prohibiting amnesty for human rights violations in the Bills establishing the Truth and Reconciliation Commission and the Commission of Inquiry on Disappearances. Principles along which lines the final version of the bill is to be drafted by the Ministry of Law and Justice were defined by three lawmakers representing each of the three major political parties of Nepal and agreed upon by a meeting of the top leaders of those three political parties on Saturday 31 March 2012.
Previously, Section 25 (2) of the draft Bill incorporated a list of crimes for which amnesty was prohibited, which is now proposed to be scrapped. Those crimes for which no pardon was allowed included murder in captivity, murder of an unarmed person, rape, torture, forced disappearance and abduction. Instead the political parties have proposed that the Commissions will grant amnesty when both victims and the perpetrators agree to reconcile. In case of disagreement on those terms or if the commission finds that a "serious" human rights violation has occurred, the parties have announced that the Commissions could "recommend" punishment.
The AHRC is concerned that such a move may result in the denial of victims' fundamental right to a legal remedy and expose them to threats and pressure from the perpetrators to accept pardoning them. Nepal has an obligation to ensure that victims of human rights violations have a right to an effective remedy. During its Universal Periodic Review, the government has reasserted its commitment not to provide amnesty to perpetrators of human rights violations in the establishment of transitional justice mechanisms. Nevertheless, refusing to include a provision specifically prohibiting amnesty does not bode well for Nepal's political commitment to accountability and justice. It creates loopholes in the bills which make amnesty possible for perpetrators of human rights violations.
In the OHCHR report mentioned earlier, the high Commissioner had specifically expressed her concern toward agreements to suppress the provision prohibiting amnesty: "political agreements made towards the end of the year raised serious concerns that the transitional justice commissions would serve as amnesty mechanisms, with a proposal to remove clauses prohibiting amnesty for serious violations of international human rights and humanitarian law from the bills".
In light of the information available so far, it seems that the commission would first attempt to "reconcile" the victim and the perpetrator, through obtaining repentance, pardon and reparations, and only if such reconciliation proves impossible or if a "serious" human rights violation has occurred would the commission recommend "punitive action". Nevertheless, the bills restrict serious human rights violations as including murder, rape and enforced disappearances.
It is of serious concern that such a list excludes human rights violations which occurred in a systematic manner during Nepal's decade-long insurgency, such as torture, prolonged arbitrary detention or forms of sexual violence other than rape. According to the Rome Statute, when committed as part of a widespread or systematic attack directed against any civilian population torture and imprisonment in violation of fundamental rules of international law constitute gross human rights violations and granting pardon for such crimes would be clearly inconsistent with Nepal's obligation under the international law. As a State party to the Convention against Torture, Nepal is mandated to punish acts of torture "by appropriate penalties which take into account their grave nature". Failing to consider torture as a "serious" human rights violation and granting pardon for such acts would further constitute a breach of Nepal's human rights obligations. It would further augur badly for the outcome of Nepal's endeavours to bring ongoing torture to an end.
Should priority be given to "reconciliation" rather than prosecution and should the commissions, by default, first try to reconcile the victim and the perpetrator through different methods, there would be a serious risk that the victims may feel pressurized to pardon their perpetrators. It is fundamental that the victims' consent to pardon should be free. But in the absence of a comprehensive victim protection mechanism, victims may face threats to comply with such settlements from perpetrators who often occupy privileged and influential positions. Intimidating victims to force them to reach an outside court settlement is routine in Nepal and a major obstacle to the establishment of an effective right to remedy for the victims. That risk is further enhanced as the current provisions of the bill concerning victim and witness protection mechanism fall short of international standards, as underlined by the Office of the High Commission for Human Rights in Nepal in its annual report to the Human Rights council.
Further, the Commission should not make the amount of compensation contingent upon pardoning the perpetrators, which would amount to a form of pressure upon the victims to accept a pardon. In December 2011 already, the International Center for Transitional Justice was raising its concern about a provision giving "the Commission the power to compel the perpetrator to provide reasonable compensation as part of the reconciliation process. This is concerning because it implies that the payment of compensation is contingent upon the Commission facilitating and ensuring that the parties reconcile. It also creates a real risk of inequality and asymmetry in the amount of compensation received by victims who have suffered similar violations, as this would be dependent on the identification of the perpetrator, the decision to undertake a reconciliation process and the perpetrator's capacity to pay".
The Ministry of Law and Justice now has the responsibility to finalize the drafts of the Bills before introducing them before the Parliament. To abide by Nepal's human rights obligations and protect the victims' right to an effective remedy, the bills must clearly outlaw pardons for offences pertaining to violations of human rights or humanitarian law and provide an effective protection for victims to ensure that they can freely consent, or not, to pardon the perpetrators.