When the peace agreement was signed in November 2006, the parties had agreed to set up a high-level Truth and Reconciliation Commission to probe cases of serious human rights violations during the war that had just ended. The Commission was envisioned as a mechanism to help heal the country and rebuild society.
During the Madhav Nepal-led government two bills were prepared to separately address the cases of disappearances and extra-judicial killings as well as torture. But the bill was never actually tabled in the interim legislature and remained in limbo for the next four years, bypassed by other priorities. Even so, human rights activists kept up the pressure on successive governments. So when the Maoist-Madhesi Cabinet forwarded a unified bill to the president's office last week, one would assume the matter would have been addressed satisfactorily.
But there are serious reasons to doubt the effectiveness of the bill to redress war atrocities. In the last four years, the two bills were never tabled in the interim legislature. It is worth questioning: what prompted the parties to agree on a unified bill and push it through at a time when there is no legislative body to deliberate upon it?
Reshma Thapa of the New York-based International Centre for Transitional Justice (ICTJ) says there were problems with the previous drafts as well, but the combined bill is worse. Gaping holes give the proposed commission power to grant amnesty for all cases, and give the Attorney General's office the final say on which case will be filed in court and which will not.
The Attorney General is a politically-appointed government lawyer and irrespective of the party that comes to power, the decision to take up the case will be a political one. Article 25 of a previously-drafted TRC bill had a specific provision that forbade amnesty in cases of custodial and unarmed killings, rape, torture, and forced disappearances. However, the new draft has conspicuously removed this provision, qualifying even the most gruesome crime for amnesty. The Maoists and the opposition are both guilty in turning this into a toothless document.
Perpetrators of extra-judicial killings among the Maoists like Bal Krishna Dhungel, Agni Sapkota and Prabhu Sah are not just walking freely, but have become CA members and ministers in government. Similarly, the army has been sheltering the accused like Niranjan Basnet and Boby Khatri despite the Supreme Court's order to present them before the court.
At the Advocacy Forum, rights activist Mandira Sharma told me she has registered over 120 conflict-related rape cases, most of them by security forces. Not a single person was ever prosecuted. In November 2004, Lt Jibesh Thapa and four of his colleagues from the Bhawani Baksh Battalion in Dailekh allegedly tortured and raped a woman in Khursanibari VDC. The District Police Office refused to register her case after which she moved the Supreme Court. But the court scrapped the case on a technicality.
In Banke, soldiers from the Bhimkali Battalion abducted two minors from their house on pretext of questioning them about their father, an alleged Maoist. The girls were tortured and raped for three days. Despite being a civilian case, the trial was conducted in military court which convicted one of the accused of illegal detention, but turned down the rape charges. Another accused Ajit Thapa was subsequently promoted.
UN Resolution 1820 states that rape and other forms of sexual violence can constitute a war crime, and stresses the need for its exclusion from amnesty provisions in the context of conflict resolution processes. It calls upon member states to comply with their obligations for prosecuting persons responsible for such acts. Furthermore, the principle of jus cogens in customary international law mandates that domestic laws be consistent with international laws and treaties, and those that are at odds become automatically null and void.
The present draft bill is an eye-wash and Nepal stands in violation of international obligations when it grants blanket amnesty to alleged perpetrators of war crimes in the name of reconciliation.
According to the rights group, INSEC, 935 people were forcibly disappeared during the decade long conflict, out of which 825 have been taken by the security forces and 110 by the Maoists. Other counts put the total at more than 1,200.
There are still no reliable figures in cases of sexual violence during the conflict because most victims are unable to speak up for fear of social stigma and further victimisation.
Politicians are afraid of elections, they should be forced to go back to the people