NEPAL: Transitional justice and impunity

NEPAL: Review of the UPR recommendations-3 Transitional justice and impunity

June 21, 2011 - During the interactive dialogue of the Universal Periodic Review, continuous impunity for grave human rights violations had appeared as the major concern of the international community. Peer countries have recalled that continuous impunity undermines respect for the rule of law and hampers the peace-building and democratisation process. In response to those concerns, Nepal expressed its full commitment "to establishing Constitutional supremacy, ensuring the rule of law, good governance and human rights, as well as providing a positive conclusion to the peace process by eliminating insecurity and addressing impunity". AF and the AHRC welcome this focus on impunity and the commitments taken by Nepal. Addressing impunity and transitional justice requirements should be made the cornerstone of the government post-UPR action. Nevertheless, recent developments in Nepal have shown that the commitments to bring perpetrators of human rights violations to book and to establish the supremacy of the rule of law are still likely to go unheeded. Such moves are in contradiction to the promises made by the government to the international community. This requires immediate scrutiny from the international community to closely monitor the implementation of the government pledge to put an end to the culture of impunity, as well as renewed commitments from the part of the government to promptly implement the following recommendations in good faith, in a transparent manner.

- "Take necessary steps to set up the Truth and Reconciliation Commission and the Commission on the Inquiry on Disappearances since the failure to act on human rights abuses undermines the respect for the rule of law" (Czech Republic)

More than a dozen countries have inquired about the government's plan to pass the bills establishing the transitional justice mechanisms mentioned in the Comprehensive Peace Agreement and recommended for such passing to occur without delay to establish accountability for conflict-related human rights abuses. AF and the AHRC are encouraged that the government has pledged that those bills should not include any form of amnesty for grave human rights violations and that it would ensure its independence from political interference, in line with international standards. The bills have been tabled before the Parliament for endorsement however, amendments have been introduced targeting core provisions prohibiting amnesty for those accused of gross human rights violations, in accordance with the government commitments. AF and the AHRC warn that scrapping the prohibition of amnesty would contribute to turn the commissions into paper tigers, unable to play a decisive role in the eradication of impunity and would be in clear contradiction to the international standards of transitional justice. We therefore urge the government to comply with its commitment to establish without delay strong and independent transitional justice commissions and to clearly ban all possibility of amnesty for those having committed human rights abuses during the conflict.

- "Tackle impunity by investigating and prosecuting human rights violations and abuses committed by State and non-State actors during and since the conflict, implementing court orders including on the Nepal Army, and ending political interference (United Kingdom) "

In complement to transitional justice institutions, the criminal justice system of Nepal must be strengthened. The government indicated that it remains committed to implement court orders and agreed to the recommendations to implement the court orders related to conflict-time or present human rights violations. Nevertheless, there is no denying that since the end of the conflict, the persisting trend of non-implementation of court orders against alleged perpetrators has allowed accused of serious crimes to go scot-free. Members of the military, police forces and the Maoists accused of human rights violations during the conflict have remained above the reach of the law, violating the rights of victims to access legal remedies. That court orders have to be binding to all, without distinction, is one of the foundations of a functioning criminal justice system able to bring to book human rights violations and this much-needed commitment must therefore be translated into concrete actions without delays. Nevertheless, four months after accepting this recommendation, no concrete action has been taken to implement pending court orders. The nomination of a minister of Information and Communication against whom a murder case has been registered following a Supreme Court order for his alleged involvement in the disappearance and murder of a school teacher, Arjun Lama, during the conflict raises questions toward the government's commitment to respecting the authority of the courts of justice.

By the same token, the government accepted recommendations to put an end to political interference in the course of justice. Political intervention in the due process of justice has been a major factor contributing to the impunity of human rights violations. We are concerned to see that in spite of the government commitment to stop political interference, the Home Minister recently declared that his office was planning to withdraw cases filed against Maoist cadres from the time of the conflict, which may include cases of grave human rights violations. This makes a mockery of the commitments taken to a zero-tolerance to impunity.

The government should size up the requirements of a commitment to accountability and accordingly put an end to the inclinations to undermine the independence and authority of justice and grant amnesty to alleged human rights abusers. Similarly, it is the duty of the international community not to settle for mere lip-service in the fight against impunity but insist upon immediate action to turn this token agreement into a comprehensive and transparent set of actions.

- "Start the investigation of all outstanding allegations of human rights violations committed during or after the conflict and to bring perpetrators to justice in proceedings which meet international standards" (Netherlands)

Recommendations specifically related to investigations of human rights violations have not been explicitly accepted by Nepal who insists that “allegations of human rights violations have been investigated in accordance with the laws of Nepal”. This is a complete denial of the reality that in a majority of allegations of human rights violations, the lack of professional, thorough and independent investigation fostered impunity. The AHRC and AF recall that it is of crucial importance that Nepal takes concrete and specific commitments to better the way investigations into allegations of human rights violations are being conducted, including by developing a system of accountability for police officers who fail to undertake satisfactory and credible investigations into allegations of human rights violations. Additionally, the government should show a strong political will to have the past crimes properly investigated and prosecuted and send clear and imperative instructions to the police and prosecutions system to properly register and investigate allegations of human rights violations.

Advocacy Forum and the Asian Human Rights Commission will continue to closely monitor the state of implementation of the UPR recommendations in Nepal.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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