An Open Letter from the Asian Human Rights Commission and Advocacy Forum to the President of Nepali Congress Party
Mr. Sushil Koirala
Nepali Congress President
Central Office
B.P. Smriti Bhawan, B.P. Nagar, Lalitpur
NEPAL
Tel : (977-1) 5555263 / 5555266
Fax : (977-1) 5555188
E-mail : ncparty@wlink.com.np
Dear Mr Koirala,
NEPAL: Blanket amnesty goes against the victims’ fundamental rights
The Asian Human Rights Commission and Advocacy Forum wish to raise their serious concern on recent media reports that the three major political parties of Nepal, including the Nepali Congress, are considering to amend the proposed draft bill on Truth and Reconciliation (TRC) and to either introduce blanket amnesty for human rights violations committed during the conflict or to make certain offences punishable at the exclusion of certain serious human rights violations including torture. We take exception to the attempts to shield perpetrators of gross human rights violations from prosecution, which may place Nepal in breach of its international obligations to provide victims with an effective right to legal redress, under the International Covenant on Civil and Political Rights.
The Guidance Note of the UN Secretary General on UN Approach to Transitional Justice recalls that prosecution initiatives are a fundamental part of transitional justice and that “peace and justice should be promoted as mutually reinforcing imperatives and the perception that they are at odds should be countered. The question for the UN is never whether to pursue accountability and justice, but rather when and how.”
You are aware that the special taskforce formed by government to ascertain the loss of life and property found that during the conflict era at least 17,265 people were killed and 1,302 were disappeared. Likewise, more than 50,000 people were internally displaced. The number of conflict era rape and torture victims is yet to be established. It is the rights of those victims that would be sacrificed for political purposes should the provision for blanket amnesty go ahead.
In a joint submission to the 19th session of the Human Rights Council, Advocacy Forum and the Asian Legal Resource Center, the AHRC’s sister organization, have expressed their opposition to the January proposal for blanket amnesty articulated by the parliamentary taskforce, arguing that “since the signing of the CPA, victims have been made to wait for the establishment of transitional justice institutions before justice can be done. Despite the Supreme Court repeatedly ruling that commitments to these commissions do not supersede the regular justice institutions, the police have again and again refused to register and investigate conflict-related cases, claiming that they should fall under these commissions’ jurisdiction. Should these institutions now be used as a means to provide amnesty to perpetrators, victims’ fundamental rights to justice will have been cynically abused.”
The supporters of blanket amnesty argue that they are inspired by the Truth and Reconciliation Commission adopted in South Africa. But the South African model did not allow for blanket amnesty, instead amnesty applications were considered individually in transparent and impartial proceedings. Out of 7112 requests for amnesty brought before the South African commission, only 849 had been granted and acts, omissions or offences which constituted a gross violation of human rights could not be amnestied. This by no means amounts to a blanket amnesty such as the one being discussed in Nepal at the moment.
We note that the Comprehensive Peace Agreement contains commitments by the parties not to condone impunity and to protect the victims’ rights. We further recall that the Interim Constitution mandates the state to adopt a political system upholding universally accepted fundamental human rights, the rule of law and the independence of the judiciary and to eliminate corruption and impunity.
The fundamental concept of justice and its centrality to the development of the Nepalese state and justice institutions are at stake in the decision to enable or not the prosecution of human rights violations. Denying victims their fundamental right to a legal remedy would be symptomatic of a state which flouts fundamental principles of justice and equality of all before the law and would not bode well for the development of a strong judicial system, a fundamental pillar of a vivid democracy.
The Nepali Congress praises itself of having been at the forefront of the political struggle for the development of democracy, human rights and rule of law in Nepal since its establishment. Blanket amnesty for human rights violations would, on the contrary, mark a regression in the endeavours to establish each of those.
We are deeply concerned about your party’s stance in excluding torture as punishable crime from the TRC bill, under the pretext that torture would be hard to “quantify”. Torture is clearly defined in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of which Nepal is party since 1991. Torture is a serious violation of international human rights and humanitarian laws and the right to be free from torture is absolute and non-derogable. The exclusion of torture from the list of punitive human rights violation would constitute a breach of Nepal’s obligation under the CAT and the TRC bill should authorize the prosecution of torture as per other human rights violations such as murder, rape and enforced disappearance.
We urge you, as the President of the Nepali Congress, to take a strong stance in favour of justice and accountability and to ask that the transitional justice institutions uphold the victims’ fundamental rights to a legal remedy. We urge you to demand that the adoption of the transitional justice institutions pave the way for the much-delayed impartial and independent investigation of all allegations of human rights violations and for the prosecutions of perpetrators in proceedings that meet international standards of justice delivery.
Yours sincerely,
Wong Kai Shing, Executive Director, Asian Human Rights Commission, Hong Kong
Mandira Sharma, Chairperson, Advocacy Forum-Nepal
