(New York) - The Nepalese government should submit the draft Disappearances and Truth and Reconciliation bills to the Constituent Assembly for consideration to ensure transparency and public participation in the legislative process, Human Rights Watch and Amnesty International said today. The bills should be amended to ensure that they are consistent with international law and that they deliver truth, justice, and reparations for victims and their families.
"It is vital that these bills be reviewed by victims, civil society, and the Constituent Assembly to ensure that they bring justice and are consistent with international standards," said Brad Adams, Asia director at Human Rights Watch. "Adopting these bills by decree will mean little public debate or scrutiny and will disempower survivors and victims."
The Nepalese government's decision to establish a Disappearances Commission and a Truth and Reconciliation Commission is a step toward ensuring accountability and bringing perpetrators to justice. Enacting a law that criminalizes enforced disappearances and establishes two inquiry bodies into past crimes could be a critical part of Nepal's transition to a rights-respecting state.
However, both draft bills currently fall short of international standards and contain serious flaws that would fatally compromise the credibility and effectiveness of the commissions once they are established.
"A government ordinance that enacts the two bills as they currently stand would establish two ineffective and flawed institutions and would tragically miss an important opportunity to address impunity in Nepal," said Sam Zarifi, Asia director at Amnesty International.
Nepalese and international organizations have asked the Nepalese government to ensure that the elements of "disappearances" as defined in the bill, in addition to the provisions relating to unacknowledged detention and abductions including by non-state actors, are consistent with those in the definition of enforced disappearance as provided for in the Convention against Enforced Disappearances.
These organizations have also urged that the bill address both individual cases and the wider practice and policy of enforced disappearances as identified in several authoritative reports, including by Amnesty International, United Nations Working Group on Enforced and Involuntary Disappearances, the Office of the High Commissioner for Human Rights in Nepal, and Human Rights Watch. (Clear Culpability: "Disappearances" by Security Forces in Nepal, https://www.hrw.org/en/reports/2005/02/28/clear-culpability-0; Nepal at a crossroads - urgent need for delivery on transitional mechanisms for truth, justice, inclusion and security, http://www.amnesty.org/en/library/asset/ASA31/011/2007/en/dom-ASA310112007en.html).
Though the Ministry of Peace and Reconstruction conducted four consultations on a draft Truth and Reconciliation Commission Bill, the most recent public version of the bill contains provisions on issues like amnesty and the commission's independence from the government that do not meet international legal standards. The bill also lacks provisions for a robust witness-protection scheme.
Amnesty International and Human Rights Watch urged the government of Nepal to involve actively all those concerned in the discussions on the establishment, mandate, and powers of the Disappearances Commission and the Truth and Reconciliation Commission. This should include national and international civil society organizations, victims, human rights defenders, and persons belonging to minorities and vulnerable groups. At the end of this consultation process, the Nepalese government should allow the Constituent Assembly to review both bills.
In June 2007, the Supreme Court of Nepal ruled that the government must enact legislation that would criminalize enforced disappearance and establish a high-level "Investigation Commission for Disappeared People" in accordance with international standards. In July 2007, the government issued the Truth and Reconciliation Commission Bill. In November 2008, the government released the Disappearances (Crime and Punishment) Bill.
