KATHMANDU, AUGUST 21
Amnesty International, Human Rights Watch, and the International Commission of Jurists said today that Nepal's long-awaited transitional justice law, adopted by the lower house of parliament on August 14, 2024, incorporates several positive provisions that could help advance justice, accountability, and redress for the widespread human rights violations and abuses committed during the 1996-2006 conflict, but there are still elements that could undermine a successful outcome.
To ensure the integrity of the process and bring the law in line with Nepali and international legal standards, lawmakers must address serious accountability gaps. Furthermore, all institutions involved in the administration of justice-including the courts, transitional justice commissions, and the Attorney General-should ensure that the bill is interpreted in accordance with international law and Nepal's Constitution, according to them.
"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, deputy Asia director at Human Rights Watch. "This should not turn into yet another exercise in which victims are encouraged to accept compensation without truth and justice."
They claim that a previous attempt at a transitional justice law, which included the possibility of amnesties for serious crimes, was declared unconstitutional by the Supreme Court in 2015 and violated Nepal's international human rights obligations. While the new law contains several significant improvements and positive provisions, some appear to be designed to shield those responsible for war crimes from prosecution.
Several survivors and families of those subjected to violations and abuses have endured years of hardship, often suffering long-term mental and physical injuries and in desperate need of reparations, all while striving to learn the truth about their loved ones, receive official recognition, and bring the perpetrators to justice. "The absence of accountability for serious crimes under international law has contributed to ongoing human rights violations and a broader crisis of impunity," reads their statement.
"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 five essential pillars of this process-truth, justice, reparation, memorialization, and guarantees of non-recurrence-must be pursued," said Mandira Sharma, senior international 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."
Furthermore, because the law is vague on some points and lacks detail in many areas, the Truth and Reconciliation Commission's and Commission of Investigation on Enforced Disappeared Persons' mandates will need to be interpreted and implemented carefully. The appointment of highly qualified and independent commissioners, as well as the Truth and Reconciliation Commission secretary, will be critical early decisions.
They have stated that the transitional justice process must be implemented robustly and independently, with safeguards in place to achieve credible and long-term outcomes. Past Nepali governments have repeatedly failed to deliver truth, justice, and reparations for atrocities committed during the conflict.
They reiterated that transitional justice is a key component of the 2006 Comprehensive Peace Agreement, which ended a decade-long armed conflict between the then-royal government and Maoist rebels and launched a peace process that included constitutional reform.
"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, South Asia director at 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 joint statement issued by the rights group also highlighted the shortcomings in the new law, officially titled A Bill to Amend the Disappeared Persons' Enquiry, Truth and Reconciliation Commission Act, 2071, widely referred to as the transitional justice bill, which was introduced in parliament in March 2023 and finally passed in the lower house with the support of Nepal's.
According to them, there has been little formal consultation with civil society and victims' or their families, who have differing perspectives on the proposed legislation. While all agree that progress towards addressing their rights and needs has been unacceptably protracted, many also continue to voice 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 offences defined as human rights violations could be granted amnesty, "serious violations of human rights" could be referred to and prosecuted in a special court.
The statement states that the language of the law is imprecise, and any amnesty for serious crimes is contrary to Nepali and international law and standards and violates victims' right to effective remedy and reparation.
The law could also exclude many cases not only from any criminal accountability but also other measures under the bill, such as civil and administrative remedies and reparations, as per the statement.
The statement has also noted that the law during the final phase of negotiations would allow for the attorney general, excluding cases of rape or "serious sexual violence," to make a binding request for a 75 percent reduction in the sentencing for those convicted of serious violations.
They have argued that this provision is a disguised amnesty, 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. According to their statement, the court should decide what reduction may be appropriate, if any, based on its own consideration of the facts and submissions by the parties to the proceedings.
