Four human rights groups Amnesty International, Human Rights Watch, the International Commission of Jurists and TRIAL on 30 August delivered an open letter to President Ram Baran Yadav, condemning the Government’s attempt to establish by ordinance a commission that would in effect permit amnesty for crimes committed during the country’s civil war.
The letter asks the President to return the ordinance, and to remind the Government of Nepal of its obligations under national and international law.
On 28 August 2012, Amnesty International, Human Rights Watch, the International Commission of Jurists (ICJ), and TRIAL (Swiss Association against Impunity) obtained a copy of an ordinance proposing the establishment of a Commission of Inquiry on Disappeared Persons, Truth and Reconciliation. The Cabinet had delivered the ordinance directly to President Yadav without any consultation – either with the public or the National Human Rights Commission.
“This ordinance in its current form represents nothing more than a blatant attempt to sweep aside years of effort to establish properly constituted, properly mandated, independent commissions on disappearances and on truth and reconciliation,” said Sam Zarifi, the ICJ’s Asia Director. “Far from delivering justice, truth and reparation after years of grievances, the proposed Commission allows the granting of amnesties for crimes under international law, which flies in the face of Nepal’s obligations under both national and international law.”
Amnesties are prohibited under international law and standards, as set out in Article 24 of the UN Updated Set of Principles for the Promotion and Protection of Human Rights through Action to Combat Impunity and the International Covenant on Civil and Political Rights, as affirmed by the UN Human Rights Committee.
“The mechanism as proposed conforms neither to international nor national standards,” said Polly Truscott, Deputy Director of Amnesty International’s Asia-Pacific Program. “If the President signs off on this ordinance, he will essentially be signaling that short term political gain, rather than the rule of law, is what matters in Nepal.”
The rights groups pointed out, for example, that under the procedure contained in the executive ordinance, proposed Commission members would be political appointees, and thus vulnerable to the kind of political pressure that international standards explicitly seek to avoid. In this regard, the proposed role of a retired Supreme Court judge as chairperson of a selection committee for Commission members is insufficient to shield the Commission from political pressure, as Commissioners will ultimately be appointed on the basis of consensus between the political parties.
The ordinance also allows the Attorney General to retain discretion in prosecuting criminal cases, which places a political appointee at the center of a process designed to implement Nepal’s obligations to prosecute the most serious crimes. Moreover, the Attorney General’s office has a poor track record in pursuing justice for human rights violations through the criminal justice system (as documented by the International Commission of Jurists in its June 2012 report, Commissions of Inquiry in Nepal: Denying Remedies, Entrenching Impunity). Such inherent, predictable lack of independence and impartiality of the Commission, its processes and members will have profound adverse consequences on the competence and effectiveness of the Commission.
“This ordinance evokes a time we all hope is long past, when those who abused their power and committed heinous crimes during the war later sought to cover them up with these kind of arbitrary measures, ultimately fostering an overall culture of impunity,” stated Philip Grant, TRIAL Director.
Furthermore, the four organizations pointed out that the ordinance directly exposes victims and their families to foreseeable threats and coercion that will arise as perpetrators and their associates seek amnesty. Nepal has international legal obligations to ensure that victims and their families enjoy access to justice and remedies, including access to effective victim and witness protection programs when necessary.
“Nepal’s government must meet its obligation to respect the fundamental rights of victims of the conflict and their families,” said Brad Adams, Human Rights Watch’s Asia Director. “Genuine reconciliation cannot be built on a foundation of impunity. While reconciliation is a laudable goal, justice, truth and reparation cannot be sacrificed in its pursuit.”
The rights groups have previously called on the Government to ensure that legislation establishing transitional justice mechanisms conforms to international standards, including ensuring that amnesties are not granted for crimes under international law, such as extrajudicial executions, enforced disappearance, torture and other ill-treatment, and crimes of sexual violence. Specific safeguards include: (i) terms of reference and a scope of inquiry that are neutral and adequately framed; (ii) guarantees of independence such that the Commission is structurally and hierarchically independent of the authorities facing complaints; (iii) adequate administrative authority and resources; (iv) non-politicized appointment of the Commission, followed by wide and public notice of appointment of the Commission and its mandate; (v) public Commission proceedings; (vi) effective victims and witness protection; and (vii) publicizing of Commission’s final report(s).
The letter concludes by urging President Yadav to return the ordinance, guarantee a fair and inclusive process for the establishment of transitional justice mechanisms and ensure that the Government of Nepal meets its obligations under national and international law.
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