Transitional Justice Mechanisms
As part of the peace agreement bringing the conflict to an end in 2006, the government and Maoist forces committed to establishing “a high level Truth and Reconciliation Commission … to conduct investigation about those who were involved in gross violations of human rights at the time of the conflict and those who committed crimes against humanity and to create the situation of reconciliation in the society”.
While properly designed truth commissions can play a very important role in promoting truth and justice and facilitating reconciliation in post-conflict settings, establishing a Commission consistent with international standards has proved very controversial in Nepal. Nearly ten years after the end of the conflict, two Commissions were formed in February 2015 (one Truth and Reconciliation Commission, and one on Enforced Disappearance), but they have not yet been able to begin their work in earnest.
The Commissions have a mandate to discover the truth about crimes committed during the conflict, to recommend reparation for victims and to recommend prosecution for individual perpetrators. However, contrary to international standards, the legislation establishing them provided the power to recommend amnesty for perpetrators, including for crimes against international law, and introduced provisions making prosecution following a recommendation by the Commission particularly difficult.
Many, including United Nations human rights experts, the UN Human Rights Committee, victims groups and lawyers, the organizations involved in the Real Rights Now campaign and other states have been critical of the legislation establishing the transitional justice mechanisms and have called for its amendment. In February 2015 Nepal’s Supreme Court declared a number of provisions – including the power to grant amnesty – unconstitutional. The Commissioners themselves have since written to the government asking it to amend the legislation in line with the Supreme Court’s decision to allow them to carry out their task properly.
International human rights law requires two key things: first, that the operation of the transitional justice mechanisms is consistent with minimum standards on victims’ rights and the need to combat impunity of those responsible for international crimes. Second, the Commissions should be complementary to – and not replace – the normal criminal justice system. The purposes of truth commissions and criminal justice are different. Both the Nepal Supreme Court and the UN Human Rights Committee have repeatedly stressed that criminal investigations and prosecutions of serious crimes committed during the conflict should proceed as provided for under the general law without any further delay, whether or not the Commissions also operate to investigate them.