Raj Kumar Siwakoti
Societies emerging after repressive regimes, atrocities or armed conflict often confront with the problem of how to deal with the legacy of past human rights abuses. What is the best possible mechanism to bring about stability and democracy in the aftermath of such hostilities? How can perpetrators and victims live peacefully side by side? These questions obviously pose a political, economic, legal and moral dilemma for the Nepali society. In order to address these questions, a range of strategies need to be considered.
There are many existing laws with similar provisions that make prosecution difficult. The existing criminal justice system of Nepal addresses conventional crimes such as theft, robbery, drugs smuggling and murder; however, none of them address the need to investigate and prosecute serious violations under international law. This has resulted in the inability to bring into the justice system those perpetrators involved in serious crimes against humanity such as unlawful killing, torture, disappearance and rape.
Legislation
Similarly, for the purpose of prosecution, it is necessary to explore whether the existing legal and judicial framework is capable of investigating and prosecuting these serious violations. The upcoming legislation such as the draft of the Criminal Code, proposed TRC and Disappearance Bill criminalising torture and disappearance need to create a robust and comprehensive system for investigating and prosecuting allegations of serious human rights violations.
Complaints of abuse by the security forces and UCPN-M were routine in the past, but the cycle of impunity was never investigated. There is lack of an adequate legal framework for prosecution in Nepal. Some laws themselves have created a hurdle in investigating and prosecuting incidents of serious human rights violation.
The trend of political criminalisation and withdrawal of criminal cases are some of the major causes contributing to increased impunity and placing obstacles to prosecution. Over the years, the government has withdrawn several cases of criminals involved in serious crimes such as theft, robbery, drug smuggling and trafficking. No action has been taken against perpetrators of Jana Andolan I and II indicated by the Mallik Commission and Rayamajhi Commission respectively.
Against this backdrop, there is a risk of perpetrators identified by the TRC and Disappearance Commission receiving amnesty. This trend is closely associated with the impunity to perpetrators, and it provides a firm ground for amnesty in the future to human rights violators of the past.
The government has the duty to enforce law. It has to ensure punishment to the culprit and justice to the victims. Politicisation of crimes challenges the administration of justice and implementation of law. Withdrawal of cases relating to homicide is in a way protecting both the crime and the criminal. It is unfortunate that Nepalese politics has turned into a factory that produces criminals. In this way, the criminalisation of politics and politicisation of crime only encourage impunity and decreased accountability.
National and international human rights communities over the years have been raising the issue of impunity, as a result of which there has been political consensus to address crimes against humanity. Therefore, in order to develop lasting peace and a meaningful democracy based on the respect for human rights, human dignity and the rule of law, it is important that Nepal address the culture of impunity.
The domestic mechanism for securing accountability has virtually collapsed due to widespread impunity. The other attributing factors are knowledge gap, lack of political will as well as inadequate legislative framework and institutional support mechanisms.
Serious violation of human rights is closely associated with the current peace process. This process cannot advance effectively till we bring the perpetrators of the past to the justice system. The reconciliation process will go smoothly when we adequately address the issue of justice and reparation for the victims. Facts about extra-judicial killings, violence, disappearance, torture and rape should be unveiled. Nepal cannot have a fresh start without addressing these problems.
Impunity continues for perpetrators of human rights abuses during the conflict - no cases have been tried before a civilian court for criminal accountability. Survivors of sexual violence reported that the police refused to file their complaint. Yet, no significant measure has been taken to deal with the past as the state of impunity is the major impediment. Indifference towards this can rather contribute to expanding impunity. Lack of accountability for the past violations emboldens those who seek to use violence to impose their criminal and political agenda today. Impunity contributes substantially to the lack of rule of law and reconciliation and peace process.
Prosecution
While analysing the present scenario of Nepal, the prosecution initiative is very fragile. A successful prosecution in high-profile cases of conflict or post-conflict violence could have a substantial impact on the political dynamics, bolster confidence in the capacity and willingness of Nepal’s rule of law institutions, and deter groups that advocate the use of violence. Immediate progress in a few emblematic cases would signify a shift in policy by the government towards the issue of impunity, and show the political actors that there are consequences to resorting to violence.
(The author is secretary general of FOHRID, Human Rights and Democratic Forum)
http://www.gorkhapatra.org.np/rising.detail.php?article_id=57596&cat_id=7
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