Press Releases

Summary

The Investigation of Disappeared Persons, Truth and Reconciliation Commission Act (Amendment) Bill, which was passed with a majority in the House of Representatives on 14 August 2024, in the National Assembly on 22 August 2024, and authenticated by the President on 29 August 2024, has renewed hope for transitional justice in Nepal, which has been stalled for 18 years. Due to a lack of serious groundwork from both the ruling and opposition parties over this period, the issue of transitional justice has been in limbo. However, the consensus reached by the parliamentary task force and the foresight shown by the top leadership can be considered a fundamental aspect of Nepal’s peace process.

There are still some important tasks to complete in order to progress through the lengthy judicial process. Given the ‘understandings’ that have made the bill broadly acceptable among political parties, it is crucial to ensure that no perpetrators or groups benefit from the process. Continued oversight and monitoring are necessary to achieve this. To prevent any hindrance to victims’ access to justice, INSEC will initiate its monitoring efforts. The passed law corrects many serious flaws of the previously presented bills and aligns with international forums and Supreme Court decisions. However, we will continue to closely study and express our concerns regarding the formation of the commission, the selection of commissioners, procedural matters, and the expected financial and administrative support from the government in the coming days.

Positive Aspects:

1. The bill, passed by both houses of Parliament, clearly classifies violations into ‘human rights violations’ and ‘serious human rights violations.’
2. Acts such as ‘arbitrary killing,’ which includes killing intentionally or arbitrarily committed by armed conflict parties against unarmed individuals or communities, enforced disappearances, or inhuman or cruel torture, are categorized under serious human rights violations.
3. Under ‘human rights violations,’ any act contrary to prevailing Nepali laws, international human rights, or humanitarian law, except for serious human rights violations committed against unarmed individuals or communities by armed conflict parties, must be considered.
4. The bill provides for the arrangement of compensation for individuals directly and indirectly affected by the armed conflict.
5. Victims of forced sexual intercourse or serious sexual violence during the armed conflict, or their representatives, have the provision to file complaints within three months of the formation of the commission.
6. The bill expands the commission’s scope by arranging separate units and allows the inclusion of subject experts in addition to staff.

Aspects Requiring Monitoring:

The bill has several shortcomings concerning penalties, serious crimes, and pardons. For instance, it stipulates that pardons can be granted with the victim’s consent. If this provision is implemented without a detailed procedure, there is a risk that victims could be coerced through fear, intimidation, or even greed. Similar provisions in previous laws have faced objections from victims and stakeholders.

The bill addresses the issue of ‘child soldiers’ by collectively referring to them as ‘displaced persons.’ It is crucial during implementation to ensure that the use of child soldiers and the protection of former child soldiers’ rights are not compromised.

Additionally, the bill includes a provision for reconciliation between perpetrators and victims by granting amnesty to those found guilty of human rights violations that are not classified as serious, except in cases of forced sexual intercourse or severe sexual violence. It also allows for a claim of a 25% penalty under prevailing laws for other serious human rights violations. Close monitoring is necessary to ensure this provision is properly implemented.

Issues To Be Ensured 

1. The appointment of officials to the transitional justice commissions is of great significance. To address the 63,000 complaints at the Truth and Reconciliation Commission and the 3,000 complaints at the Disappearance Commission, it is necessary to have individuals who are recognized experts in human rights, national law, and international law. Therefore, the selection of officials should be made from those who have reflected on the horrors and suffering of the conflict period. In the past, commission officials have been appointed solely based on their proximity to political parties and have been found to be less knowledgeable about the issues and unable to bear the responsibilities of their positions. This has led to consistent neglect of victims and is also a notable reason for the continued delay in the transitional justice process.
2. The newly formed commissions and their officials must be capable of holding political leadership accountable and must be established public figures in the field of human rights. The leadership should complete their duties with the victims at the center of their work. Additionally, the commission should not be hindered from working due to financial or other resource constraints. In this context, attention must be paid to the experiences of past commissions. Previous commissions have reported being unable to work due to issues such as lack of cooperation from the government. The perspectives of the victims regarding discussions, debates, and arguments must be heard. These mechanisms should understand the victims’ views and opinions on the overall process, as they seem to be unaware of it. Victims seek assurance of justice and a guarantee that similar crimes will not occur in the future and that no one will be victimized by crime. Transitional justice mechanisms need to pay attention to this.
3. The officials of the newly appointed commissions must compile details of the work done by previous commissions and issue a white paper providing information on the current status and remaining tasks. They should also assess the complaints and records collected so far. If there have been any difficulties or issues due to fear during the complaint submission process, they should resolve these problems and seek information from the victims.
4. The large group of individuals who are missing, have suffered dismemberment, or have been subjected to sexual violence and torture are not integrated into the mainstream of Nepal’s peace process. Political commitment and declarations alone are not sufficient to bring the peace process to a conclusion. Issues such as the perpetrator’s self-confession or self-criticism for past crimes, victims’ trust in justice, and matters of dignity or forgiveness must also be prioritized. These are aspects that victims should feel included in.
5. In other countries affected by armed conflict, commissions and bodies have been established to address transitional justice, including truth-seeking and reconciliation. These commissions have exposed human rights violations to the public and brought the perpetrators into the legal framework. However, the methods and practices established in other countries cannot be directly applied to Nepal, as Nepal’s peace process is inherently different from all other peace processes. Only by concluding the transitional justice process based on Nepal’s unique circumstances can Nepal become an example for the world.

Conclusion

Families of missing persons have the right to know the status of their missing relatives. Families of those who have been killed, dismembered, subjected to sexual violence, or displaced have the right to information about why the crime happened to them. A comprehensive hearing of human rights violations and criminal events facilitates the transitional justice process. Commissions must focus their attention on this matter. Similarly, the transitional justice process should address past weaknesses or mistakes, prosecute perpetrators based on due process, provide victims with compensation and redress in a respectful manner, and ensure that the process of granting amnesty does not harm the victims’ dignity. This is the current responsibility of the human rights community and civil society. Only continuous vigilance can help the judicial process regain its momentum.