On May 18, 2023, a subcommittee was established under the Law, Justice, and Human Rights Committee of Nepal’s Parliament to discuss a proposed bill for the amendment of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act (TRC Act, 2014). The bill was proposed in the parliament on March 9, after a long hiatus by the government of Nepal in addressing the cases of gross human violations that occurred during the decade-long internal armed conflict (1996- 2006).
An urgent need to resolve such cases and address the violations was one of the core agreements made in the Comprehensive Peace Accord (CPA) signed by the Nepal government and then the rebel group, the Nepal Communist Party (Maoist), in 2006. Through Section 5.2.4 and 5.2.5 of the CPA, the TRC Act, 2014 was meant to address the cases of gross human rights violations. It also established two institutional mechanisms to address the cases: the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Enforced Disappeared Persons (CIDEP).
The TRC Act was repeatedly criticized by stakeholders, who called for amending its provision related to amnesty and prosecution. Critics said the act perpetuated impunity. The government thus proposed a bill to address the concerns and issues of the victims and stakeholders, which is now being examined by the parliamentary subcommittee.
However, the proposed bill contains the same flaw as its predecessor by providing loopholes for amnesty in its provisions. The presented bill thus remains incompatible with international law, views of the Human Rights Committee (HRC), rulings given by the Supreme Court of Nepal, and the demands of the conflict victims and civil society organizations. The bill risks perpetuating impunity and undermining the pursuit of justice for victims through poor categorization of gross human rights violations, allowing mediation between the victim and perpetrator, and failing to provide a special mechanism for investigation by the TRC and CIDEP.
First, the proposed bill has stated that a Special Court will be established to try those cases recommended by the TRC and CIDEP. This Special Court will have three judges, appointed by the government in “consultation” with the Judicial Council. This provision increases the risk of political appointments to the Special Court, which does not align with standards set by the Constitution of Nepal and international laws. This has been a contentious topic, especially as the institutional framework of the TRC and CIDEP has been roundly criticized since its inception for the political appointment of its members.
There are also issues with the bill’s approach to separate out abuses that can and cannot be granted amnesty. The definition of a “serious violation” in the proposed TRC Bill – the only category for which amnesty is banned – excludes many acts that may amount to gross violations of human rights, war crimes, and crimes against humanity requiring investigation and prosecution under international law.
Section 2(4) classifies human rights violations into two categories: (i) serious violations of human rights and (ii) other violations of human rights. Violations of human rights include: murder, sexual violence, physical or mental torture, abduction and hostage-taking, illegal detention, beating, maiming and causing physical disability, forced displacement, vandalism, arson of private property, or other inhumane acts against human rights and humanitarian law. Serious violations of human rights include: murder with cruelty or torture, rape, torture (cruel and inhuman treatment), and enforced disappearances committed in a targeted or planned manner against unarmed an individual or community.
The bill prevents commissions from recommending amnesty for “serious violations of human rights” but allows doing so in cases classified as “other violations of human rights.” This classification is highly problematic, as many violations in the latter category include crimes that cannot be granted amnesty under international human rights laws, such as murder, torture, abduction, and mutilation. These crimes further are excluded from the jurisdiction of the Special Court, which is limited only to the four classifications of “serious violations.” The bill does not include some serious and heinous crimes under this category, thus making those abuses not “qualified” for true accountability. Perpetrators would enjoy de facto amnesty.
Besides the classification issue, the qualification of “serious violations of human rights” poses a significant challenge in identifying such crimes. The use of qualifiers thus further expands the potential for amnesty.
First, using qualifiers like “in a targeted or planned manner” and “against unarmed individuals or communities” sets a higher standard of proof for prosecutors – requiring not only proof of a violation falling under one of the four criteria, but also evidence that the crime was carried out in a deliberate and targeted manner against unarmed individuals or communities. Consequently, it may be nearly impossible to prove that an enforced disappearance qualifies as a “serious human rights violation,” despite its inclusion in the category.
In particular, this standard means that serious violations of human rights committed against combatants – the military and the Maoists – will not be prosecuted. Similarly, if there is insufficient evidence to prove that a serious human rights violation was committed in a targeted or planned manner, it could lead to the perpetrators escaping punishment or accountability.
Second, the distinction between “murder after cruel torture or killing of somebody in a brutal manner” and “murder” – defined in the bill as a “serious violation of human rights” and “violation of human rights,” respectively – can be exploited to grant amnesty to a person accused of extrajudicial, summary, or arbitrary execution.
Additionally, the inclusion of rape in the list of “serious violations” – and the exclusion of other forms of sexual violence – creates a possibility for many other brutal forms of sexual violence to be granted amnesty. Due to this deficient categorization, and the exclusion of other forms of sexual violence from consideration as serious violations that occurred during the armed conflict, most perpetrators can only be prosecuted as ordinary offenders. This compounds the existing problem that Nepal’s Country Penal Code 2017 does not adequately criminalize rape and other forms of sexual violence as per international standards. As a result, impunity looms large for the perpetrators of sexual violence.
Furthermore, the burden to prove these qualifiers beyond a reasonable doubt falls under the responsibility of the state. In many cases, finding evidence to meet these high standards can be challenging, particularly in the context of armed conflict where there is limited access to information or documentation. Thus, the addition of qualifiers to distinguish between “serious” and “other” human rights violations may lead to a de facto amnesty.
Many of the abuses listed in the bill, under both categories, are gross violations of international human rights law and serious violations of international humanitarian law, which may amount to crimes against humanity and war crimes if they were committed in a widespread or systematic manner. Providing amnesty for such crimes is prohibited by the Geneva Convention and its Additional Protocol. However, war crimes and crimes against humanity are not included in the mandates of the TRC and CIDEP, nor that of the Special Court. Nepal’s domestic law, then, neither provides for the possibility of such violations being investigated or prosecuted, nor prohibits those accused of committing these crimes from being granted amnesty.
The proposed bill states that punishments imposed by the Special Court will be as per the prevailing laws. The prevailing law reference, though not clear, seems to point toward the 2018 Penal Code, which criminalizes and provides penalties for some of the crimes listed under “serious violations” (including torture and enforced disappearances). The Penal Code, however, does not have a retroactive effect, and the statute of limitations will limit cases that can be filed under this act, leading to a dead end. In addition to that, the 2018 Penal Code also does not criminalize and penalize crimes against humanity and war crimes and other crimes under international law.
The proposed bill has faced significant criticism and objections from the international community, victims, and civil society organizations. These concerns mainly revolve around its violations of international law, Supreme Court verdicts, and the Nepali Constitution, as well as the possibility that the bill will grant de facto amnesty for those involved in serious human rights violations. It is crucial for the bill to address and resolve these concerns in order to be truly effective. Otherwise, the bill would be just another pseudo-attempt to bandage the wound caused by the decade-long conflict, with no acceptance from victims, or national and international stakeholders.