[JURIST] Nepal's draft Truth and Reconciliation Commission Bill of 2007 does not meet international legal standards [press release] as currently drafted, Human Rights Watch and the International Commission for Jurists [advocacy websites] said Wednesday. The groups called the bill "seriously flawed" and said that it does not meet standards set forth in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights [text]. According to HRW and the ICJ:
The commission's proposed mandate would not address serious violations of international humanitarian law. The draft bill also fails to clarify that the terms "gross violation of human rights" and "crimes against humanity" must be defined and applied in a manner that meets international standards.HRW and the ICJ also expressed concern that the proposed Truth and Reconciliation Commission would not be sufficiently independent from the government, saying that "Though the draft bill states the commission will operate in an independent and impartial manner, it contains numerous provisions which could undermine these principles." The groups urged the government of Nepal to:
In the draft bill, amnesties could be granted even for gross human rights violations if these acts had a political motivation, if the perpetrator made an application indicating regret, or if victims and perpetrators agree to a reconciliation process. Such a mechanism could result in protection from criminal prosecution for even the gravest of crimes. ...
While the proposed draft states that amnesty will not be provided to any person involved in "murder committed after taking under control or carried out in an inhuman manner; inhuman and cruel torture; rape," the vagueness of these terms creates leeway for amnesties for those responsible for murder or torture that the commission defines as not inhuman or cruel. Clearly defined terminology that is internationally accepted, such as "torture and other cruel, inhuman or degrading treatment or punishment," should be used.
Under the draft bill, the Truth and Reconciliation Commission could not even consider any case already decided or being decided before a court in accordance with existing laws. The bill excludes from the commission's mandate all cases of crimes under international law and other human rights violations in respect of which victims and their families had previously sought a remedy before the courts, whether or not an effective remedy was obtained. Protection against double jeopardy is crucial, but the overbroad scope of exclusion could result in denying justice to those who have already been denied it once in the court system.
The commission should have the power to express views on the need for judicial review of cases heard in the courts. Nepal has an obligation under international law to ensure measures adopted do not lead to impunity or constitute an impediment to bringing perpetrators to justice.
The UN Office of the High Commissioner for Human Rights has also raised concerns about the bill [press release, PDF], saying earlier this month that:
Ensure open and meaningful consultation is carried out with civil society and victims in the drafting process; Clarify that the terms "gross violation of human rights" and "crimes against humanity" are to be applied in accordance with international legal practice to ensure that any serious infringement of Nepal's international human rights obligations is duly investigated and that no acts that adversely affected civilians during the conflict are left out of the scope of the bill; Introduce transparent appointment procedures, such as public hearings of the commissioners to ensure the independence and impartiality of the commission; Respect international human rights standards with respect to granting of amnesties for serious crimes. Section 25(2) of the bill must be amended to exclude recommendations for amnesty for crimes under international law such as crimes against humanity, war crimes, and gross human rights violations in general such as extrajudicial killings, enforced disappearances and torture; Guarantee reparation to all victims of human rights violations; Ensure that the preamble, which incorporates the objectives of the commission, should include objectives that fulfill Nepal's treaty obligations. These would include provisions to bring justice to victims and establish a historical and accurate record of incidents.
OHCHR-Nepal is deeply concerned about provisions which would amnesty the perpetrators of gross human rights violations and violations of international humanitarian law (IHL), including extrajudicial execution, torture and disappearances. Amnesty provisions which prevent prosecution for these offences are inconsistent with Nepal's obligations under international law. ...The draft Nepalese law would establish a seven-member commission to investigate human rights and crimes against humanity committed during the armed conflict in Nepal [JURIST news archive] between 1996 and 2006. The panel would be tasked with making recommendations to the government concerning reconciliation, prosecutions, amnesty and reparations. Bloomberg has more.
Among the other main concerns regarding the bill is the lack of safeguards regarding the independence, impartiality and diversity of the Commission, both in relation to the selection of commissioners and in relation to operational and financial matters. According to the bill, the commissioners will be selected by a government-appointed body that may consist of political actors, rather than a diverse group that is representative of society. At the same time, there are no provisions to ensure diversity based on ethnicity, gender, caste, geographic region and religion.