Nepal: New Transitional Justice Law a Flawed Step Forward
Geneva, August 20, 2024: Nepal’s long-awaited transitional justice law, adopted by the lower house of parliament on August 14, 2024, incorporates many positive provisions that could help in advancing justice, accountability, and redress for the widespread human rights violations and abuses committed during the 1996-2006 conflict, but still has elements that could undermine a successful outcome, Amnesty International, Human Rights Watch and the International Commission of Jurists said today.
To ensure the integrity of the process and bring the law into compliance with Nepali and international legal standards, serious accountability gaps need to be addressed by lawmakers. In addition, all institutions involved in the administration of justice – including the courts, the transitional justice commissions, and the Attorney General – should make sure to construe the bill in accordance with international law and Nepal’s Constitution.
“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.”
A previous attempt at a transitional justice law, which provided the possibility of amnesties for serious crimes, was found by the Supreme Court in 2015 to be unconstitutional and in violation of Nepal’s international human rights obligations. While the new law includes several significant improvements and positive provisions, parts again appear designed to shield those responsible for wartime crimes from prosecution.
In Nepal, many survivors and families of those subjected to violations and abuses have lived in hardship for years, often suffering lasting mental and physical injuries, in desperate need of reparations, while struggling to learn the truth about their loved ones, to receive official recognition, and to see the perpetrators brought to justice. The lack of accountability for serious crimes under international law has contributed to ongoing rights violations and a wider crisis of impunity.
“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 of the 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.”
The transitional justice bill envisages a major role for donor funding to implement the process. Once it is finally adopted as the law, donors and the Nepali authorities should develop and implement a system for oversight of the management of funds to support transitional justice. This will facilitate access to expertise and safeguard against political and other unwarranted interference, particularly in the handling of justice and reparation processes. The vagueness of the law on some points, and lack of detail in many areas, mean that interpretation and implementation of the mandates of the Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons will be critical. The appointments of highly qualified and independent commissioners, and of the Truth and Reconciliation Commission secretary, will be especially important early decisions.
It is critical that the transitional justice process be implemented in a robust and independent fashion, and that safeguards are established to achieve credible and durable outcomes. Past Nepali governments have repeatedly failed to deliver truth, justice, and reparations for conflict-era atrocity crimes. Transitional justice is a major outstanding commitment of the 2006 Comprehensive Peace Agreement, which ended a decade-long armed conflict between the then royal government and Maoist rebels, and inaugurated 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.”
Shortcomings in the law
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, was introduced in parliament in March 2023, and finally passed in the lower house with the support of Nepal’s three largest political parties following protracted negotiations. However, there has been little formal consultation with civil society and victims or their families, who hold a range of views on the 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.
