Suryakiran Gurung is the President of the Truth and Reconciliation Commission. The commission was formed in 20....
Dinesh Tripathi, LL.M from University of Baltimore, USA is an Advocate at Supreme Court, particularly having a wide range of experiences in constitutional law and human rights.
He is also executive member of South Asians for Human Rights, a regional South Asian Organization and International Advisor to Global Majority, which is working for global human rights and peace. Mr. Tripathi has been continuously engaged in the Transitional Justice issue and also leads the movement against “blanket amnesty”. He talked in details on issue of Disappearance and the context in Nepal with reference to Truth and Reconciliation Commission Ordinance with INSEC. Excerpts:
During the armed conflict, Nepal was the country which got the highest number of disappearances which the UN sub-committee on disappearances has also recorded. During the conflict, disappearance was very wide spread but not a single perpetrator was brought to the justice. And under the CPED, state is under obligation to criminalize the crime of enforced disappearance as it is a serious crime which is also considered as international crime which means that there should be no amnesty for crime of disappearances. Even though Nepal has not formally ratified this convention, the Supreme Court gave a verdict in response of writ petition that Nepal has to constitute a Commission on enforced disappearance in compliance with international norms and standard to investigate the crimes of disappearance. Now, Nepal is under obligation to constitute a credible commission to investigate all the cases of people who were subjected to enforced disappearance during the conflict era. So Supreme Court said in its verdict that the commission needs to be according to international standards. It needs to be independent, credible and it has to be competent to investigate all crimes. Because Supreme Court is the final interpreter of the constitution, the verdict of the Supreme Court is mandatory to each and every agency, instrumentality and organ of the state, they are under constitutional duty to implement and give effect to the verdict. Also the Supreme Court has said that the commission needs to be established that is in accordance with the norms of international law.
Secondly, the Comprehensive Peace Agreement (CPA) clearly mentions that the situation or whereabouts of all the disappearances need to be brought to the knowledge to the public within sixty days. The authors and the signatories of the CPA had realized that the crime of enforced disappearances is a serious issue and it has to address it very urgently and because of that the provision about bringing the whereabouts of disappeared persons to the public knowledge within 60 days was incorporated although there are not any formal legal mechanisms or legislation on enforced disappearances.
Article 100 of the ICN, 2007, says that the recognized principle of justice shall be taken as the sources of law while rendering justice. Also, the Preamble of the Constitution uses the same. Here, the recognized principle of justice means the norms which are accepted by the international community. The UN charter Article 55 and 56 say that member states are under the obligation to take individual and collective effort to give effect to human right of the people. Under the auspices of UN, series of other international instrument have been adopted. In the same course, the CPED was also adopted. The convention puts an obligation on states to bring enforced disappearance offenders to justice. They must do so not only with regard to persons who commit enforced disappearances on their own territory, but also in cases of alleged offences in other jurisdictions: in those cases states have to either prosecute or extradite the alleged offender, so that no one can escape justice. Under the Convention disappearance is a crime against humanity. In order to show our full commitment to human rights and justice, it’s high time that Nepal has to ratify this convention on disappearance as a large number of people have disappeared and no perpetrator were brought to the justice.
Clearly, there is lack of political will on the side of the state. There is interim constitution, Nepal is party of several international human right conventions, and we also have the CPA in order to facilitate this transition. The political parties need to understand that peace process is not a license to stay immune from the criminal activities. The basic purpose of the peace process is to strengthen the rule of law and the purpose of CPA is to ensure human rights for the citizens, because peace is not only absence of war. In order to have a genuine peace you need to ensure the rule of law, fundamental rights and freedom of the people, so there is a misunderstanding that peace process means forgetting the past. A fact is that under the peace process, there must be effective instruments, mechanisms and a credible process to address the past.
Peace requires rule of law, peace requires human right and justice. But, the then rebels, the Maoists, wanted to hijack this peace building process; they interpreted the peace process being a gateway to amnesty. But the underlined theme is “blank Amnesty and peace does not go together”. There must be accountability for crime. The perpetrator must be held accountable for their crime and brought to justice. There are politicians who continue to have the outdated impression that if you ensure justice, peace will disappear. Now it is well established notion that in order to have peace, justice is must. If you sacrifice justice there is no peace. Peace and justice should go hand in hand together. The misconception and the lack of political will are the determinant of non-ratification of the CPED.
Yes, the ratification of CPED would aid in pushing ahead the movement to ratify the Rome Statute of International Criminal Court (ICC). Disappearance is a serious crime; it is a crime against humanity and an international crime. It also attracts a universal jurisdiction. It is also crime under ICC. The emergence of ICC is a landmark achievement in International law. It established the notion that- serious crime should not go unpunished. Under ICC serious crimes became the legitimate concern of international community. The trial can be conducted in ICC for serious crimes- If there is unwillingness or lack of capacity on the domestic level. Previously, the trial used to be under domestic law and jurisdiction, but now, with the view that the serious crime should not go unpunished there is ICC. So these crimes that are specified under statute are also adjudged by the ICC.
Nepal is sceptic (both the state actors and the political parties) to prosecute such act but in context of the international crime, if the national jurisdiction is unwilling or there lack of capacity, the jurisdiction of ICC starts. Nepal has not yet ratified CPED and Rome Statute, but Nepal has gone through serious crime. Though ICC has no retrospective effect; we need to create safeguard for future. Also, the basic purpose of Transitional Justice (TJ) is the creation of institutional and legal mechanism so in future such crime should not happen.
Nepal is party to Geneva Conventions (GCs), but we have not done anything to criminalize the crime under GCs, we don’t have any legislation and we didn’t even ratify the Rome Statute. So the requirement is to take series of institutional and legal measures so that in future these things will not occur. The basic purpose of TJ is to design national, institutional and legal mechanisms for the future so that we have an adequate and credible mechanism, institution, process and law which will address the issue. Nepal as gone through decade long conflict, there was violation of International Humanitarian Law (IHL) and GCs; but no one was brought to justice. This has led to the feeling that no serious crime will be punished. So if Nepal will ratify this convention and also Rome Statute, then we will have an additional safeguard if the national level is unable to address the impunity and serious violation of humanity and law.
Under our treaty regime, article 9 of Nepal Treaty Act, 1990, if we ratify any convention, it is under higher norm so if any national provision is in contradiction to int’l law, then national law will be null and void. Therefore it is a logical feeling that if we ratify CPED it will pave the way and create a conducive environment to ratify Rome Statute.
No concrete legal steps have been taken at this point. Also the Truth and Reconciliation Commission Ordinance (TRCO) has enlisted disappearance as the serious violation of Human Rights. But the Truth and Reconciliation Commission (TRC) is empowered to recommend amnesty to any crime; there is no negative list. The original draft in parliament and the promulgated ordinance are different and contrasting to each other. The ordinance which is now published is a much diluted form of the original one because the original bill clearly mentioned that the crime of Disappearance would not be recommended for amnesty.
The Supreme Court has also given a mandate which says that there are needs to have a credible investigation of all the crime of Disappearance which took place during conflict. By implication, there is liability on state as it is under constitutional and legal duty and it is bound by the duty to give effect/ implement the verdict of the court. For.eg. the Indian Supreme Court even when CAT was not ratified by India, said that it is widely accepted that torture is a serious crime and even though it has not ratified, it is a crime and India has duty to take serious steps to address it. So by this virtue as well, though the CPED is not ratified by Nepal, it incorporates the universal principle of justice and human rights and it is an obligation to criminalize it. Disappearance has been put into the list of serious international crimes which cannot be amnestied under international law by United Nations Security Council (UNSCR) and the Secretary General Guideline on Principle of TJ and Reparation also says that the crime of disappearance is not liable to amnesty under any peace process.
Since we (Nepal) are a member of the United Nation system, we are under legal obligation to take concrete step to criminalize this crime.
No, TRCO is totally against the norms of convention. The Ordinance says the investigation of “disappeared persons” but it rather should have said “involuntarily (enforced) disappeared persons”. The definition itself is not in accordance with the jurisprudence because the TRCO implies the missing persons but it is important to note that missing and enforced disappearance are two different things. Anyone can be missing or have disappeared (voluntary) but in context of enforced disappearance it must be involuntary and must be done by the state agencies or through authorization of state. That’s why it is a serious crime, but TRCO does not carry basic component of convention. Therefore, the ordinance is inadequate and there is no clear accountability under TRCO for those who committed the crime.
Moreover, under the ordinance, the crime of disappearance can be recommended for amnesty, but under the CPED it is mandatory, it must be criminalized. It is crime against humanity under CPED. If it is a serious international crime, the perpetrator must be brought to justice. But under the TRCO there is no obligation.
Yes it must be two different commissions because TRC is an investigating body; it only establishes truth and in addition can also provide recommendation but it is not a court. Under the TRC in case of petty crimes, in consent of victims, reconciliation can be made. But Disappearance cannot be amnestied. The CPA singed among the political parties have also agreed to set up two different Commissions, viz., TRC and Commission on Disappearance. Both of these commissions have two different natures. The former is to find the truth and the latter is to investigate the status of the disappeared persons. TRC is only to deal with the past and it has nothing to do with the present and future. Disappearance is a continuous serious crime. There is a lack of clear conceptual understanding on the part of drafter of the TRCO and a lack of political will on the nature and functioning of the two commissions. So there should be two different commissions.
If there is a different commission with different mandate, the Commission on Disappearance will be designed for the particular need of disappeared people. We need separate mechanism; procedure and process that are victim centric. There must be easy access for them and the process needs to be streamlined, the victim’s confidence needs to be restored and the victim should believe that this process is credible and result oriented. It will do justice.
But under this mechanism there is no guarantee that the perpetrator will be punished and there will be justice because they can be given amnesty. So, it goes against the principle of International law in which it cannot be amnestied. Bringing to justice is a minimum requirement. For e.g. In Sierra Leon, under the Lome Peace Accord (7 July, 1999), it was mentioned that nobody will brought to justice which the International community and the UN did not accept that because there needs to be prosecution in serious crime. In post conflict society the criminal justice system needs to be strengthened.
Under this ordinance, justice is not possible. It undermines the rights of the victims. One of the basic/important components of TJ process is the victim justice system. To ensure justice, there must be criminal accountability. But TRCO has not established criminal accountability, so this ordinance is a fraud against the victims and their rights, undermining their right to get justice. It does not either fulfil the 4 components of TJ process 1) Truth establishment, not only to the victim but also to the society and for future generation so that they know the history of the country and who were the perpetrators which is also a kind of naming and shaming process; 2) Right to justice. It was promised that within 60 days the whereabouts of the disappeared persons would be established but it has now been 7-8 years passed nothing has been done; the process has not gone forward. 3) Criminal accountability should be established. The political parties are avoiding the process to escape from punishment, 4) TJ should be a victim centred process but the perpetrators are hijacking this so under this TRCO justice is not possible.
The ordinance was promulgated by the President under recommendation of government but it was rejected by the Civil Society Organizations (CSO) because the negative list of the crimes presented in the original bill was omitted. The whole process of promulgating the TRCO became a tool of heavy political bargaining. The Maoist did not want any accountability and other political parties took a very opportunistic stand. Now the ordinance has been challenged in the Supreme Court and the SC has given interim order not to implement certain provision of the ordinance.
The TRCO is a seriously problematic, and not acceptable. Also the ordinance was promulgated without the consultation of the victims. The NHRC was also not consulted and the TRCO was promulgated so this ordinance will not do justice. Therefore the only way out is to bring a new ordinance with two separate commissions.
Yes, it is possible to reopen the cases. We cannot say that the crime is done under political garb and the perpetrator will not have accountability. There is no immunity and amnesty for crimes. Prosecution can be done for the acts prescribed under the common article 3, which applies for the non-international armed conflict in Nepal. For e.g. references can be taken to the Yugoslavian tribunal and the Rwandan tribunal which were constituted by the Security Council because there was serious violation of IHL. So even if Nepal has not ratified Rome Statute, the Security Council has special power to refer to any situation. If the Security Council finds that there is threat to international peace and security, any situation can be referred to the ICC and tribunal can also be constituted.
Also, in Sierra Leon and Cambodia, there were extra ordinary tribunals which were set up by pressure of the international community. And there are also hybrid court that constitutes of international judges and the judges of the respective countries. If there is lawlessness and impunity, peace can’t prevail. Peace means accountability, justice and dignity of human persons. Re-opening of the cases is in accordance with the Human Rights Principle.
TJ process is a supplementary process which cannot replace CJS. The notion of international law is that supremacy of CJS needs to be established. For serious crime there should be prosecution and there is not any alternative to it.
For e.g. In Agni Sapkota case, Supreme Court said that the investigation needs to be continued. In Dekendra Thapa case as well the accused are in judicial detention. Similarly, in Maina Sunuwar case, the court said that a First Information Report needs to be registered and the investigation must be continued. In Bal Krishna Dhungel case, the conviction has already been made by the final court.
So TRC has its limited mandate it can’t replace the entire CJS system; it aids the CJS by finding the truth. Rest of the prosecution and all relevant activities are done by the formal legal system.
Even UN has said that in a post conflict society the CJS needs to be strengthened; it needs to be made effective and cannot be undermined. It is only through persecution, now criminal accountability can be ensured. For e.g. in South Africa, there were 8000 application for amnesty and only 1500-2000 were accepted. This clearly emphasizes that if there is crime it must be punished. “IPPR” which means if the crime happens it must be Investigated, similarly if there is evidence it must be Prosecuted, and if there is sufficient evidence there must be Punishment, and the Rehabilitation has to be given to the victim.
In Nepal, under Government Cases Act, 1992 there is a separate list of crimes where government is party which includes the crime of murder, rape etc. Similar is the crime of disappearance even though it is not listed. People who have disappeared are dead now. So I would say the investigation has to be done under murder act; initially it might look like a case of disappearance but after investigation it might convert to murder. So if credible investigation starts, the murder will be established. But, there is no initiation of investigation. Government is under no liberty to say it cannot investigate. It is legal constitutional duty and duty under international law to investigate the crime. The basic duty of a state is to ensure rule of law but the impunity goes against the very notion of rule of law as well as against the dignity of its citizens. Impunity and rule of law cannot go together.
“You can flee justice but you cannot escape justice”. But our politician has taken an ostrich like approach of avoiding it. But sooner or later justice must be done. There is no alternative to justice. The issue of justice will always be live. For e.g. in Nazi Germany, still the trial is going on. Similarly, even after 40 years, tribunal has been constituted in Bangladesh and the trial is going on. The message to the victims is “We should not lose faith in justice”.
The government being a part of international community should also understand that even if you don’t ratify the Rome Statute, the common article 3 of GC is a customary international law and by the very virtue of being a jus cogens, Nepal has the obligation to abide by it. Similarly, the crime of torture, whether you ratify or not, it is a principle that torture should not be done. So, universal principle of justice and rule of law cannot be undermined. If Nepal fails to start a credible investigation process for accountability and justice, international jurisdiction will arise. For e.g., In Colonel Lama case, justice was not done so the international jurisdiction started. And it is dismaying at the way political parties reacted in that case. It is very unfortunate that they claim it as an issue of sovereignty and nationality. It has nothing to do with sovereignty and nationality because the issue of justice has nothing to do with borders.
It is a legitimate concern of international community. If the crime is against humanity is perpetrated, the entire humanity has a duty to ensure justice; it is a collective responsibility to ensure justice, rule of law.
Upon the serious violation of humanitarian law and war crime, the international community has the responsibility to prosecute it. For e.g. in case of George Bush, former president of USA, his international travel is restricted to Canada, Switzerland, France as in several jurisdiction, there is complaint against him for committing the crime of torture. It is to be noted that we can’t escape justice permanently. Justice is paramount, rule of law is paramount and no justice means no permanent peace.
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