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Justice expert tells Nepal to make Act changes public

- Ghanashyam Khadka, Kathmandu
Revising Truth and Reconciliation Commission Act

Apr 20, 2018-A transitional justice expert on Thursday urged Nepal government to use the amending of Truth and Reconciliation Commission (TRC) Act as an opportunity to integrate concerns of all stakeholders and make the amendment public.

“The Attorney General told me an amendment is on the way,” said Priscilla Hayner. “When it is ready, the text of the amendment should be made available to the victims, civil society and the international community and ask for their comments if they have any.”

Only then will all the stakeholders own the TRC Act. This will strengthen the mandate and the authority of the Truth Commissions of Nepal, she said.

The author of acclaimed book ‘The Unspeakable Truth: Confronting State Terror and Atrocity’, perceives Nepal’s process of transitional justice as commitment to international human rights law.

Replying to the question whether the Truth Commissions in Nepal maintain international standards, the cofounder of International Center of Transitional Justice (ICTJ) said they lack some fundamental features.

“Some of the core elements I want to see in a truth commission have not been developed yet,” she said. “Undertaking research into some thematic areas of the conflict and asking questions about how and why violence took place are essential to understand the patterns of human rights violations. It is another way of revealing the truth with a big picture. But, this overarching research does not seem to be undertaken by the Truth Commissions in Nepal which is like missing the very essence of it to be formed.” “Generally the court and the Office of the Attorney General are not the right places to ask for the causes of violence, that is why truth commissions are needed,” she said.

According to her experience with more than 40 truth commissions around the world, people involved in conflicts are often willing to speak the truth eventually.

“For that, you need to ensure confidentiality. If you don’t understand the pain of victims and you don’t respect them then the harm goes deep. So, it is the duty of the truth commission to reach out and talk to the people.

“For example, I heard about a victim in Nepal who asked for the cause of his father’s disappearance for 18 years, but none has been able to answer him.” she said. “It is important to know whether it was a policy of a conflicting party to make people disappear and kill. If yes, it is also equally important to know why they had that policy. Was the violence just part of the policy or it was just an act of some particular commander?  Dealing each case individually may not be very helpful to seek the answer of these crucial questions.”

The National Human Rights Commission Nepal invited Hayner a week ago as the keynote speaker of an international conference on human rights here. Victims and members of civil societies and media persons interacted with her during her week-long visit.

Many Nepalis believe the TRC should investigate all cases. It received more than 60,000 complaints from victims of the decade-long conflict.

“My experience tells, there is no time and it is not the right place to try to individually investigate so many cases.  No country has been able to do that so far. Rather, there should be serious investigation of some emblematic cases, which need to be carried out strategically.

“Under the international human rights law, every state has an obligation to protect the rights of its citizens and prosecute the perpetrators after a thorough investigation. “If a state fails to execute these obligations, international mechanism may be activated. Universal jurisdiction, for an instance, may be applied to the perpetrators who are not trialed (sic) in their nation,” Hayner said.

The arrest of the Nepal Army officer Kumar Lama in London in January 2013 was under the universal jurisdiction, which allows most of the European countries to put to trial any perpetrators of human rights in their land. Since the arrest of Lamam, many Nepali Maoist leaders (including Maoist Centre Chairman Pushpa Kamal Dahal), Nepal Army officials, have had to cancel their trips to Europe and Australia fearing arrests.

“Apart from that the International Criminal Court may look into the matter if a state is a party of Rome Statute. Some states including Nepal are out of the scope of the International Criminal Court as they are yet to ratify the Rome Statute,” she concluded.

Published: 20-04-2018 09:26

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