--By Shant Sharma
It seems that both Dahal and Oli are scared from inside though they appear cool, calm and collected outside. Dahal fears that the leaders and cadres of his party, including himself, may be prosecuted and jailed for heinous crimes committed against humanity by the rebels during the decade-long Maoist insurgency. Similarly, Oli feels that his coalition government propped up by so many partners can collapse anytime, especially if the CPN (Maoist Centre) withdraws its support. Both Dahal and Oli found a solution to their fears in the nine-point deal inked between the two parties on May 5.
In a bid to retain the support of the Maoists for the CPN-UML coalition government of Prime Minister Oli, the two ruling coalition partners agreed to the nine-point deal containing provisions that aim to shield perpetrators of abuses in Nepal’s decade-long civil war. Provision 7, which directs the authorities to withdraw all wartime cases from the courts and to provide amnesty to alleged perpetrators, is particularly problematic.
This political deal between the ruling parties is extremely damaging to the credibility of an already deeply politicized and flawed transitional justice process in the eyes of Nepal’s conflict victims. Moreover, it flies in the face of Nepal’s international human rights obligations and the rulings of Nepal's own Supreme Court by trying to wash away the crimes of the conflict by attempting to co-opt pending criminal cases and provide blanket amnesty to alleged perpetrators.
Let one thing be very clear - the leading political parties of the country should not bargain away justice for victims of serious human rights abuses as part of an agreement to form a new coalition government. This agreement between the ruling parties threatens to entrench impunity for those who planned and carried out killings, enforced disappearances, torture, and other crimes in Nepal’s civil war, just as the country’s long delayed transitional justice process is finally about to get under way.
Madhabi Bhatta, a member of the Truth and Reconciliation Commission (TRC), one of the transitional justice bodies in Nepal, recently returned to Kathmandu after visiting 14 districts of the mid-western region. She said hundreds of victims of the Maoist insurgency fear acts of vengeance from the perpetrators, especially after the UML-Maoist agreement that includes immediate initiation of the process to withdraw insurgency-era cases and other politically-motivated cases and clemency to the perpetrators.
“Hoping for justice, we have lodged complaints naming the perpetrators. Unfortunately, the ruling parties have decided to offer them clemency,” said Suman Adhikari, chairman of Conflict Victims’ Common Platform. After the nine-point deal, nothing stops the perpetrators from targeting the complainants, added Suman, whose father, Muktinath Adhikari, a school headmaster of Lamjung district, was allegedly abducted, tied to a tree and killed by Maoist cadres in January 2002.
Nepal has an obligation under international law to investigate and, where sufficient evidence exists, prosecute crimes under international law, including torture and other ill-treatment, enforced disappearance, extrajudicial executions, war crimes, and crimes against humanity. The political deal by the ruling parties to grant amnesty to those responsible for conflict-era human rights abuses is a callous attempt to disregard Nepal’s international treaty obligations by violating victims’ rights to an effective remedy. The deal jeopardizes the war victims’ last best hope for justice and accountability.
The applicability of this international obligation under Nepali law was reaffirmed by the Nepal Supreme Court in its 2015 decision in the Suman Adhikari case, striking down provisions of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2014 (TRC Act) that it ruled were inconsistent with international law. The court had ordered the government to amend the TRC Act, the May 2014 legislation thereby creating the two transitional justice mechanisms, the Commission on Investigation of Disappeared Persons (COID) and the TRC.
The Supreme Court ruled in the same decision that criminal cases already before the judiciary could not be transferred to the two commissions, confirming that the judiciary and not the commissions had the authority to determine the criminality of conflict-era human rights violations.
International human rights watchdogs like the International Commission of Jurists, Human Rights Watch, and Amnesty International, along with Nepali civil society, victims’ groups, the United Nations, and the international diplomatic community have consistently called for the Nepal government to amend the TRC Act in line with Nepal’s international obligations as well as the Supreme Court’s jurisprudence, in order to ensure a credible transitional justice process that safeguards victims’ rights and conforms to rule of law principles.
In a flagrant display of deliberate disregard for the rule of law, however, the ruling parties’ deal to amend the TRC Act by attempting to reinforce the same amnesty provision that has been repeatedly struck down by the Supreme Court ignores both the country’s international legal obligations and the binding judgments of its own apex court. Further, it threatens the prospects for post-war justice and accountability in Nepal.
There is a need for taking immediate and effective steps to safeguard the victims’ rights to truth, justice, and reparation through a credible transitional justice process that is free of any political interference or any forms of pressure or intimidation.
We all know that serious crimes against humanity have been committed in the name of the “People’s War” by the rebels as well as in the name of controlling the
At last, a simple question: Should Oli and Dahal, or even their parties for that matter, be allowed to deprive the conflict victims of justice?