SPEAKING
FREELY Seeking truth and reparation in
Nepal By Dr Gyan Basnet
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
click hereif you are interested in
contributing.
In Nepal's 10-year
conflict, both state and Maoist forces committed
gross violations of human rights, including mass
killings and rapes. Statistics and reports show
that the conflict witnessed over 18,000 deaths and
a multitude of crimes such as kidnapping,
extortion, arson, demolition of infrastructures,
possession and destruction of property,
extra-judicial killing, displacement, forced
recruitment, and the disappearance of hundreds of
people.
Every state has a duty to promote,
implement and ensure respect for international
law. It must ensure that its laws are consistent
with international law,
and it must protect victims of conflict in
accordance with its international obligations.
Truth and reconciliation commissions (TRC) are
regarded as essential for achieving justice and
reconciliation in a post-conflict society: they
proclaim the establishment of the new democratic
order that will form a break with the violent
past.
A few weeks ago, Nepal's government
passed an ordinance that seeks to establish such a
TRC as part of their transitional justice
following the decade-long Maoist insurgency. Of
huge legal and political significance is the
intended empowerment of the TRC to grant an
amnesty for serious crimes, including those under
international law. Such an amnesty would
undoubtedly deny justice to many victims of the
insurgency, and it immediately raises the
following questions. Should establishment of the
TRC not await greater political consensus and the
agreement of all to cooperate? Is the
controversial move to establish both TRC and
Disappearance Commission by ordinance not driven
by evil intent? Whether leaders achieve
lasting peace and democracy in the country depend
very much on how they address transitional justice
issues. The idea of setting up a TRC by ordinance
has already attracted the attention of national
and international human-rights organizations and
activists who fear that the government is intent
on granting a blanket amnesty to all wrongdoers.
Many more questions must be asked. Is it
possible to consolidate peace and democracy in the
country without addressing the grievances of
victims through a justice mechanism? Is the right
to establish the truth not an important element of
the right to justice and peace? Does any denial of
the truth not amount to a gross denial of justice?
Is the proposed TRC by ordinance not just contrary
to the norms of international practice,
international human rights and humanitarian law,
but to the soul of the Nepal's Interim
Constitution of 2007, to the order of their
Supreme Court of five years ago and, most
importantly, to the rights and will of the
victims? Is it not one of their greatest
paradoxes, and should their people not demand a
serious explanation from government?
During the decade-long insurgency, both
Maoist and government forces seriously violated
human rights, and victims still bear the cost of
the insurgency. In granting "justice"to the
violators by treating them as political criminals,
the government has undermined the basic legal
rights of every victim. Granting an amnesty to
those responsible can in no way provide justice to
victims of such a multitude of human rights
abuses.
It is said that "justice, peace,
and democracy are not mutually exclusive
objectives, but rather a mutually reinforcing
imperative". Strengthening the rule of law and
building the people's trust in state institutions
are both absolutely necessary in the struggle for
a workable and just society. If they ignore these
values now it shall hamper the construction of a
national community of free and equal citizens in a
plural democracy set on a path to development. The
establishment of transitional justice mechanisms
by ordinance can only push the nation towards a
greater crisis brought about by the evil intent of
the present puppet government. In any case, how
could they be sure that any future TRC by
ordinance can either be independent or fair?
Amnesty: A mockery of
justice The proposal to grant amnesty to
serious violators of human rights and humanitarian
law is against the norms of constitutionalism.
International human rights law does not permit an
amnesty, especially an amnesty for gross
violations of human rights and serious violations
of international law. Any process of transitional
justice that provides such an amnesty for the
perpetrators of serious human rights violations
and war crimes is, therefore, contrary to Nepal's
commitments under international law, international
human rights law and humanitarian law.
The
ordinance to establish a TRC with the provision of
an amnesty is not acceptable. Any amnesty that
prevents establishment of the truth through
investigation and the identification and
prosecution of those responsible for violations is
ruled out under international human rights and
humanitarian law. Such an amnesty can only
contribute to the perpetuation of impunity, the
denial of victims' rights to reparation and
justice, and the sacrifice of any hope of lasting
peace.
The United Nations Human Rights
Committee on Blanket Amnesties stated: 'Amnesty
prevents appropriate investigation and punishment
of perpetrators of past human rights violations,
undermines the efforts to establish respect for
human rights, and contributes to an atmosphere of
impunity among the perpetrators of human rights
violations.' An amnesty is possible only after
ensuring that those responsible for serious crimes
under international law have been prosecuted,
tried and duly punished.
Rule of law
and democracy The civil conflict in Nepal
has been so huge that a fully comprehensive
approach to peace, justice, and reconciliation is
now essential. The justice and reconciliation
processes must move hand in hand if they are to
achieve complete justice and peace. Huge national
and international pressure must be exerted on this
government to establish transitional justice
mechanisms that comply fully with the standards of
international human rights and humanitarian law.
Establishing the TRC by ordinance can only weaken
the ground for human rights and lead eventually to
general amnesties for any criminal activities
recorded in the conflict-era.
The future
TRC in Nepal must be anything but a talking shop.
Establishing a TRC for the sake simply of having a
TRC will not be enough. The norms and values of
international human rights law and international
established traditions must be strictly followed.
The most urgent task now is for them to rescue
Nepal's politics from the hands of the puppets.
They need now to liberate their country from its
old dogmas and to help build a united, harmonious
and sustainable nation. If the transition process
is to create a solid foundation for a viable
democracy and constitutionalism, the truth
gathering process must be followed by concrete
measures to end the culture of impunity and build
the rule of law.
Dr Gyan Basnet,
who holds a PhD and an LL M degree in
International Human Rights Law at Lancaster
University, UK, is a Columnist, Researcher in
International Human Rights Law and a Human Rights
and Constitutional Law Lawyer in the Supreme Court
and Subordinate Court of Nepal. Email:
gyanbasnet@aol.com.
Speaking Freely
is an Asia Times Online feature that allows guest
writers to have their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
Head
Office: Unit B, 16/F, Li Dong Building, No. 9 Li Yuen Street East,
Central, Hong Kong Thailand Bureau:
11/13 Petchkasem Road, Hua Hin, Prachuab Kirikhan, Thailand 77110
