Make no doubt about it, amnesties for war crimes are illegal under international law. Note for example Charles Taylor who was ousted from Sierra Leone on the promise of an amnesty only to be nabbed a bit later and taken to the international court.
Already one alleged war criminal has been charged in the UK after a British prosecutor had the backbone to fulfil international law. (Does anybody know whether Colonel Kumar Lama has absconded after being granted bail?)
But what is likely in Nepal is that the parties, the military and the Maoists get together and agree a list of perpetrators that they will give amnesties to. They probably already have.
Pillay says Nepal commission must not grant amnesties for serious violations
The UN High Commissioner for Human Rights, Navi Pillay said Wednesday she deeply regrets the passing of an ordinance to establish a Truth and Reconciliation Commission in Nepal with power to recommend amnesties for serious human rights violations, and strongly urged the government to rectify this and other provisions which would contravene international standards
“Such amnesties would not only violate core principles under international law but would also weaken the foundation for a genuine and lasting peace in Nepal,” Pillay said.
The Commission on Investigation of Disappeared persons, Truth and Reconciliation Ordinance was passed last week to establish a Commission to investigate human rights violations that occurred during the 1996-2006 conflict in Nepal. At least 13,000 people were killed with a further 1,300 still missing from that period. The 2006 comprehensive peace accord agreed to establish such a Commission seven years ago, but no law was passed until now. The Ordinance was announced last week as part of a package to break a long-standing political deadlock and move the country towards fresh elections.
“An amnesty for those who committed serious human rights violations will deny the right of thousands of Nepalese to truth and justice. This will not provide a sustainable road to peace,” Pillay said.
“I am particularly disturbed that the text of the Ordinance was developed and passed in such a secretive manner, without consultations with civil society, victims, families of the victims or even the national human rights institutions,” the High Commissioner said. “Past experiences elsewhere in the world have shown that without the active involvement and support of these key affected groups, mechanisms of this type may lead to further divisions and disagreements, so producing the opposite result to that intended.”
Noting that the Truth and Reconciliation Commission will also have the power to conduct reconciliation processes without the consent of the parties involved, the High Commissioner said that “You cannot, and should not, force people to reconcile. Reconciliation, by its nature is a voluntary act.”
In October 2012, the High Commissioner released the Nepal Conflict Report, a landmark report documenting and analysing around 9,000 serious violations of international law that occurred during the ten-year conflict, some of which may amount to war crimes. The report underscored Nepal’s obligation to ensure the prompt, thorough, independent and impartial criminal investigation of gross violations of international human rights law, and the prosecution of those found responsible.
“I am also concerned that the Ordinance may be used to avoid or delay criminal investigations and prosecutions of conflict-related cases. Criminal justice should be reinforced, not replaced by other transitional justice processes such as truth and reconciliation commissions,” Pillay said.
The High Commissioner also noted with concern that many serious violations, such as torture and enforced disappearance, are not adequately criminalised in Nepali law. “As recommended by its own Supreme Court, Nepal should address these gaps in its criminal law, and underpin this by ratifying the Convention for the Protection of All Persons from Enforced Disappearance,” Pillay said.
She also stressed that her Office stands ready to provide support and advice to the Government of Nepal to amend the Ordinance so that it complies with international laws and principles, and called for open and broad-based consultation as the process continues.