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Nepal defies UN concerns over civil war reparation bill

Three UN special rapporteurs wrote to Nepal govt in June saying the law was inconsistent with international laws

Former Maoist leader and current Prime Minister of Nepal Pushpa Kamal Dahal is seen in this file image

Former Maoist leader and current Prime Minister of Nepal Pushpa Kamal Dahal is seen in this file image. (Dipesh Shrestha/AFP)

Published: August 12, 2023 03:57 AM GMT

Updated: August 12, 2023 04:06 AM GMT

Nepal’s government has refused to make amendments to a proposed law that aims to investigate rights violations during the nation’s decade-long civil war that left thousands killed despite serious concerns from United Nations special rapporteurs.

Aruna Joshi, chief of the Human Rights and International Treaty Agreement division at the Nepal prime minister’s office stated that no changes could be made to the Truth and Reconciliation (Amendment) Act at this point, the Kathmandu Post reported on Aug. 10.

“We have said the bill is now the property of the federal Parliament. The executive cannot interfere in the business of the legislative. It is against the principle of separation of powers,” Joshi was quoted as saying.

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The government statement came after three UN special rapporteurs expressed “serious concerns” over various problems in the bill that seeks to probe rights violations committed during the 1996-2006 armed conflict that killed about 17,800 people.

In a 13-page letter addressed to the Nepali government on June 9, the special rapporteurs wrote that the bill was inconsistent with Nepal's obligation to investigate human rights violations committed during the conflict under international human rights laws.

Media reports say the bill is now in the final phase for approval at the sub-committee of the Law and Human Rights Committee of Nepal’s House of Representatives. Various stakeholders including the victims of the Maoist insurgency have been consulted.

The proposal seeks to investigate and punish offenders and bring justice to the victims of the civil war.

The war began in 1996 after the Maoists who opposed the country’s constitutional monarchy launched an all-out “people’s war” to establish a single-party communist republic.

The decade-long conflict ended in 2006 after Girija Prasad Koirala the then prime minister of Nepal and Maoist rebel chief Pushpa Kamal Dahal – also known popularly as Prachanda - signed a peace deal.

Dahal is the current prime minister of Nepal.

Joshi stated that the government response to the United Nations was sent through the Ministry of Foreign Affairs on Aug 7.

In their letter, the UN rapporteurs highlighted multiple omissions and sought answers on how the government planned to address them.

“In its current form, the bill prevents the criminal investigation and punishment of human rights violations related to the 1996-2006 internal armed conflict, including certain crimes which constitute serious human rights violations under international law,” the rapporteurs said.

The letter touched on five key elements of the bill – categorization of serious human rights violations, crimes against humanity, amnesty provisions and reduction of sentences, retroactive applicability of the law and statutes of limitations, time frame, mandate, and independence of transitional justice institutions.

The letter was jointly signed by special rapporteurs: Fabian Salvioli for the promotion of truth, justice, reparation, and guarantee of non-recurrence; Morris Tidball-Binz for extrajudicial, summary, or arbitrary executions; and Reem Alsalem for violence against women and girls, its causes and consequences.

Aua Baldé, chair of the Working Group on Enforced or Involuntary Disappearances, also signed the letter.

The rapporteurs pointed out that the bill projects a “two-pronged categorization of violations of human rights to be considered by the transitional justice mechanisms, which appears to be inconsistent with the classification of such violations under international standards.”

Citing section 2 (5) of the bill, they pointed out that the listed offenses do not “encompass all serious human rights violations defined in international law.”

The particular section of the bill listed murder with cruelty or torture or inhuman conduct, rape, enforced disappearance, and inhuman or cruel torture committed against unarmed civilians or communities in a widespread and targeted manner as serious human rights violations.

The working group objected to the terminology as indicative of probable impunity towards the perpetrators due to the classification of the crime highlighted in the bill.

“According to the bill, crimes that fall under the category of 'human rights violations' can be the subject of amnesty, while crimes falling in the category of 'serious human rights violations' cannot be the subject of amnesty,” the rapporteurs said.

“Serious human rights violations under international law which are listed as 'human rights violations' in the amendment bill would therefore be subjects of amnesty,” the rapporteurs added.

The working group also pointed out the lack of a clear definition of the laws that will be used to punish the perpetrators once they are found guilty.

According to the current wording in the bill, the sentencing would take place as per “existing law.”

The rapporteurs noted that the bill does not clarify which existing law would be used to prosecute those involved in serious human rights violations.

Nepal’s 2018 Penal Code prevents retroactive applicability of its provisions and includes time limitations for reporting crimes of rape, torture, and enforced disappearances, which the rapporteurs felt could hinder the delivery of justice.

For the crime of rape, the time limitation is established at two years for an adult and three years for a minor as per the Penal Code.

The rapporteurs also touched on the practicability of the situation wherein a victim gives consent for amnesty to the perpetrator.

“The bill does not clarify what happens when victims do not give consent for amnesty or when perpetrators fail to fulfill the aforementioned conditions for granting of amnesty, as there are no legal provisions to prosecute human rights violations which were not amnestied,” the rapporteurs said.

The rapporteurs also pointed out that the two-year time given to the transitional mechanisms to handle the 60,000 complaints received was insufficient.


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