NEPAL: Don't reduce transitional justice to a whitewashing exercise
The Asian Human Rights Commission (AHRC) wishes to express its deep concern at the latest developments in the establishment of transitional justice institutions in Nepal. On 19 April 2012, the major political parties of Nepal have agreed to merge the initially proposed Truth and Reconciliation Commission and the Commission of investigation into disappearances into one unique commission the Integrated Reconciliatory Commission, placing a heavy emphasis on Reconciliation over Justice. There are rising concerns that this unique commission would be granted the power to provide amnesty, including for human rights violations and even in cases in which the victims refuse to pardon the perpetrators. This would constitute a clear encroachment of Nepal's obligation to provide victims of human rights violations with an effective right to a legal redress, under the International Covenant on Civil and Political Rights.
Since the signing of the Comprehensive Peace Agreement in 2006, the AHRC has continuously voiced its conviction that a long-lasting and durable peace-process would be inconceivable should concerns for the victims' rights be left behind. The CPA itself had envisioned a peace process relying on the fundamental pillars of justice and accountability and included provisions in which both parties agreed not to condone impunity and to protect the rights of the victims.
On 22 April, three victims' organisations- the Conflict Victim Society for Justice, the National Network for the Family of the Disappeared and the Conflict Victim Orphan Society -have issued a statement taking exception of the government's and political parties' attempt to grant impunity through the reconciliatory commission. Asking one fundamental question "What sort of peace is expected by sacrificing the truth and justice of thousands of victim families? " They called for the boycott of this commission.
The AHRC holds the firm conviction that victims' concerns must be put at the centre of the transitional justice institutions if Nepal does not want to reduce transitional justice to a mere whitewashing exercise. For the last six years, victim's organisations have fought tirelessly to know the truth about the circumstances of the violations they or their relatives faced and to find avenues to get legal redress. Their access to justice has been continuously obstructed, while the government hid behind the commitment to yet-to-be established transitional justice process to postpone the investigation and prosecution of human rights violations committed during the conflict. Using the Integrated Reconciliatory Commission as a mechanism to exonerate the perpetrators from prosecution would top that long list of obstacles put on the way of the victims' access to justice. International law has long held that depriving victims of human rights violations of their right to a legal remedy constitutes a separate violation of their rights.
As the AHRC continuously repeated, the primary purpose of transitional justice institutions must be to uphold two fundamental rights, in both their collective and individual dimensions: the right to justice -- including the right to legal redress for the victims -- and the right to the truth. Only if those two rights are guaranteed, can the Nepal government give its people credible guarantees of non-repetition and the country can envision a stable and peaceful future.
Amnesty would further come in violation of commitments that the Nepalese government has time and time again taken before the international community to uproot impunity from the country and hold perpetrators of human rights violations accountable. One year ago in particular, the international community at the occasion of the Universal Periodic Review of Nepal had overwhelmingly expressed concern at the ongoing impunity of perpetrators of human rights violations committed at the time of the conflict. The government of Nepal had pledged not to condone impunity and in particular committed to implement in good faith a Swiss recommendation to "ensure that the Truth and Reconciliation Commission, as well as to the Commission on Disappearances be operational within the briefest delay and that there be no amnesty for grave violations of human rights".
In a series of open letters addressed to the leaders of the three major political parties of Nepal, the AHRC along with Nepali NGO Advocacy Forum had warned the leaders that amnesty would go against the victims' fundamental rights and would jeopardize the institution-building exercise that Nepal has engaged into since 2008. "The fundamental concept of justice and its centrality to the development of the Nepalese state and justice institutions are at stake in the decision to enable or not the prosecution of human rights violations. Denying victims their fundamental right to a legal remedy would be symptomatic of a state which flouts fundamental principles of justice and equality of all before the law and would not bode well for the development of a strong judicial system, a fundamental pillar of a vivid democracy."
The AHRC once more calls upon Nepal government to abide by Nepal's human rights obligations and uphold the victims' right to an effective remedy by ensuring that the bill pertaining to transitional justice clearly and unconditionally prohibits pardons for offences amounting to violations of international human rights or humanitarian law.
Source: Asian Human Rights Commission
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