Just as the transitional justice bodies gear up for investigating complaints related to war era, there are some issues that could be of major cause for concern for those who have been awaiting justice for years. And one of them is the “new definition of murder”. The proposed amendment bill on transitional justice has limited the definition of murder to “the act of killing after taking under control”.

 Stakeholders find this definition of murder problematic, as it clearly specifies crimes of certain nature as pardonable. Extra-judicial killings cannot be justified on any pretext, they argue.

“According to this definition, extra-judicial killings in incidents like Badarmudhe blast and Kotwada killings, for instance, are not considered murder,” said rights defender Charan Prasai. “This definition seems to condone hundreds of extra-judicial killings.” In June 2005, the then rebel Maoists ambushed a passenger bus in Badarmudhe of Chitwan district, killing 39 and injuring 72 passengers. In February 2002, the then Royal Nepal Army (RNA) had killed 36 construction workers in an indiscriminate shooting in Kotwada airport of Kalikot district. The national and international rights organisations have recorded casualties resulting from aerial attacks, indiscriminate shootings, bombings and cross-firings during the decade-long insurgency.

The new definition only applies to incidents like Doramba. In August 2003, 19 people were detained and summarily executed by the then RNA in Doramba of Ramechhap district. An investigation team of the National Human Rights Commission had exhumed the bodies of all 19 persons who had their hands tied behind their backs before they were shot at close range. Most of the wounds were found on heads.

“This definition will lead to political interpretation of murder, which will complicate the issue instead of simplifying it,” said Ram Kumar Bhandari, general secretary of the Conflict Victims Common Platform (CVCP), an alliance of victims who suffered at the hands of state as well as rebels. “This may settle the issue at the leadership level, but it surely is not going to give a sustainable solution to the conflict-induced problem.”

With the complaint registration process at the Truth and Reconciliation Commission and the Commission for Investigation of Enforced Disappeared Persons concluded this week, the two transitional bodies have six months to look into over 60,000 cases. It is expected that the victims have also registered complaints of incidents which were not reported earlier. According to government records, there were 14,375 incidents of killings, including deaths in cross-firings, detention as well as hostage situation. The new definition of murder will classify these killings, and treat them, separately.

What is worrisome is, say stakeholders, political leadership is using the issue of transitional justice as “a bargaining chip” to make or break the government.

Five of the nine agreements (points 3-7) reached between the CPN-UML and CPN (Maoist Centre) in May were related to conflict-era cases, which included a time-bound action plan such as amendments to the existing legal provisions, reparation for victims and withdrawal of war-era and other political cases and amnesty. The deal then had saved the UML-Maoist coalition. 

When the Maoist Centre joined hands with the Nepali Congress in July, they signed a similar agreement in relation to dealing with war-era cases.

Settling war-era cases is the most important aspect of the peace process, and disagreement over the way to go about it was one of the reasons that led to the fall of the UML-led government.

Although there has been no objection to the reconciliatory approach of the proposed amendment bill on transitional justice prepared by the erstwhile government, the stakeholders are highly concerned about the new definition of murder.

“This definition gives political leadership room for multiple interpretations to suit their interest,” said Bhandari of the CVCP. “We want political leadership to maintain minimum norms when it comes to justice delivery and honouring victims’ dignity.”

The erstwhile government had narrowed down the list of crimes of serious rights violations from nine to four.

It amended the Section 2(J) of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act-2014 and enlisted rape, enforced disappearance, torture and murder after taking under control as crimes in which amnesty cannot be granted.

The act of abduction and hostage taking, causing mutilation or disability, forceful eviction from house and land or any other kind of displacement, any inhuman acts inconsistent with the international human rights or humanitarian law and looting, possession, damage or arson of private or public property are categorised as other acts of rights violations.