November 3, 2011 By Megan Wakefield Leave a Comment
In August, Nepal elected its fourth prime minister since its first democratic election in 2008. Prime Minister Baburam Bhattarai, a member of the Unified Communist Party of Nepal (Maoist), stepped in to lead the Constituent Assembly away from its political standstill and toward the creation of a long-anticipated constitution.Within days of his election, Bhattarai signed an agreement withdrawing criminal cases against members of the Maoist party and other political movements who committed crimes and human rights abuses during Nepal’s ten-year civil war. The agreement also granted a general amnesty for these individuals and groups, protecting those who committed war crimes during the conflict from being prosecuted and preventing victims of those crimes from seeking judicial remedy. As a party to the International Covenant on Civil and Political Rights (ICCPR), Nepal is obligated under Article 2 to provide “effective remedy” by a “competent judicial…authority” for all those alleging that their human rights have been violated.By granting impunity to members of political groups that allegedly caused countless human rights abuses during the civil war, Bhattarai’s agreement bars victims from effective judicial remedy, thereby violating Article 2 of the ICCPR and demonstrating a disregard for Nepalese citizens’ human rights.
From 1996 to 2006, Nepal experienced a violent and turbulent civil war as Maoist rebels overthrew the Hindu monarchy in hopes of a democratic future.During the conflict, rebels, including members of Bhattarai’s Maoist party, and police forces murdered 15,000 Nepalese, and the country saw the highest number of political disappearances in the world. As Nepal rebuilds post-conflict, the combatants and perpetrators of war crimes, many of whom are still politically affiliated, must slowly reintegrate into society. Now that the Maoists are in power, public recognition of the horrors of the civil war through the prosecution of these combatants would reflect poorly, and possibly detrimentally, on Bhattarai and his party. However, Bhattarai’s agreement is not the first suggestion to grant amnesty to those who committed politically motivated war crimes; none of the political movements involved in the civil war want to be held responsible for the crimes committed during that time. In the years since the end of the civil war, there has not been a single criminal prosecution for crimes committed during the ten-year conflict.
Article 2, Paragraph 3 of the ICCPR requires parties to ensure that victims of human rights violations have access to an effective remedy. Article 2 also specifies that a competent judicial authority must hear victims’ claims of alleged violations and that a competent authority must be able to enforce identified remedies. General Comment 31, which informs Article 2 of the ICCPR, specifically highlights the importance of effective remedy in preventing future violations and that impunity is a strong contributing factor to the recurrence of violations. The General Comment also emphasizes the detriment impunity presents to Article 14, which promotes judicial independence, and Article 6, which protects against extrajudicial punishment. According to the General Comment, a nation that fails to investigate and to bring perpetrators to justice can itself be in breach of the ICCPR because it is not protecting these essential human rights.
In preventing prosecution of pending cases and granting general amnesty for all politically motivated human rights violations committed during the civil war, Bhattarai denies those who wish to prosecute claims against rebels or the former government access to the only judicial system in which they may seek remedy for their harms. This clearly bars victims’ ability to receive any form of reparation for harms committed during the civil war, which is essential both to the individuals’ recovery and the country’s ability to move forward. Without effective remedy, victims cannot receive restitution or rehabilitation, and the Nepalese society cannot benefit from measures of satisfaction such as public apologies, public memorials, guarantees of non-repetition, and important changes in the country’s laws and practices.
Like many human rights provisions, Article 2 of the ICCPR has both positive and negative legal obligations. The negative legal obligations require signatories to refrain from violating Article 2. Article 2’s positive legal obligations are just as essential: the state must also prevent third parties from violating individuals’ civil and political rights. As Nepal continues its transition from monarchy to war-torn territory to democratic nation, it will be important for the Constituent Assembly to keep in mind both Nepal’s positive and negative legal obligations under the ICCPR. Nepal’s negative obligation can be met through the creation of a constitution that protects the right to access effective remedy and to have that remedy enforced by competent governmental authorities. The positive obligation requires the new government to actively fulfill its obligation of providing effective remedy by nullifying Bhattarai’s agreement and allowing victims to pursue justice.
http://hrbrief.org/2011/11/nepal%E2%80%99s-new-prime-minister-grants-impunity-for-civil-war-crimes/
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