Prosecutions will have to take place—sooner or later
Many aspects of the peace process remain unaddressed. Among them, perhaps the most contentious issue is that of transitional justice. The political party leaders are collectively pushing for a call for general amnesty, but Trilochan Uprety, the senior legal Secretary at the Prime Minister’s Office, says that it’s no solution at all, and that it goes against internationally binding legislation. Uprety spoke with Bidushi Dhungel and Kamal Sigdel on the legally binding documents Nepal has signed, the experiences of other countries’ TRCs, and Nepal’s own TRC and the Bill on Transitional Justice. Excerpts:
Where does the government stand in terms of transitional justice mechanisms?
In terms of national and international responsibility and the Interim Constitution, we have endorsed 22 international human rights conventions and among them, there are seven core treaties which we are party to. They bind us to justice for every citizen. But serious violations of human rights which took place during the civil war between the Maoists and the state are yet to be addressed. The UN Office for the High Commissioner for Human Rights has archived 20,000 documents related to conflict-era human rights violations. So we even have information on what violation happened on. INSEC has also compiled such studies of cases, along with other human rights organisations. The cases point to incidents of extra judicial killings, or abduction, torture, and then killing. There are also many cases of rape where often the person has been killed but the body is still missing and the same goes for torture victims. These kinds fall under the four most grave types of violations—murder under captivity, murder by rape, murder of an unarmed person, and murder by torture—and cannot be simply dealt with through amnesty and reconciliation alone, they require investigation and persecution.
You’ve said transitional justice is a national responsibility. How do you see the government fulfilling it?
The transitional justice bill which was proposed by the government two years ago was discussed by various people and organisations across the country, and I believe that it will be passed such that the Nepali people will get justice and those which are guilty will be brought to book. This will mean that the state fulfils both national and international responsibilities regarding transitional justice. But if this doesn’t pass and justice isn’t served, then sustainable peace is not possible and we will have failed to fulfil our responsibility to the people and the international community. Likewise, there will be little room to justify the state’s actions to the people and the world if the commission isn’t formed in a way which persecutes those responsible for grave human rights violations.
There have been speculations that the parties have agreed to remove the clause in the bill that lists crime for which the commission cannot request amnesty or withdrawal.
If you’re referring the notion of general amnesty, I know nothing of it more than what I’ve heard in the papers and I don’t believe it. I do know that some of the wording has been moved around such that it is a little more lenient than it was. But if it is true about general amnesty, then there is no need for the Bill or the Commission at all. I have come to know that the political agreements are pushing for a bill that makes it such that every violation can be granted amnesty with three conditions: full disclosure by the perpetrator, sincere apologies, and approval by the victim. That’s what they’ve been talking about.
So we’re going towards the South African “forgive but not forget” model?
Yes, that’s what it looks like.
Will this deliver justice in our context?
Well, it needs to be researched and investigated. But if you ask me, we cannot be at peace unless at least the four grave violations (Murder under captivity, murder by rape, murder by torture, and murder of unarmed person) are investigated, taken to trial and justice to the victims is served.
Are you saying there should be prosecution even if the victim agrees to forgive?
Yes, even if the victim agrees to forgive. Take this for example: your unmarried brother has been killed and you are the closest of kin. The demand for justice can change overnight—you may be in an economic fix, or you may be threatened from external forces—which can make you abandon the demand for justice. If someone gives you 100,000 American dollars that’s not reconciliation or justice. Like I said before,
it’s against national and international law to forgive or give amnesty to grave violations.
What you’re trying to say is that the cases which encompass universal jurisdiction can’t be forgiven?
Yes, precisely. Universal jurisdiction or the four grave offences as I mentioned cannot be forgiven. There may be compulsion to do so out of immediate political need, but that is not sustainable. That will be overturned and reviewed. For example, Pinochet passed the Amnesty Law such that no one in their army could be touched. After Pinochet resigned and fresh elections took place, his Amnesty Law was overturned. And when he went to seek medical help abroad, he was detained. Then the international legal community and courts became involved. Argentina is a similar case of granting blanket amnesty in the 1950s. But the legal cases against the generals of that time are ongoing today; years after the violations took place. The people will eventually demand justice, whether it’s today or tomorrow.
In Nepal, if amnesty is granted now, is the future government likely to overturn the law and hold accountable the perpetrators?
Yes, looking at our situation, it is very likely.
You work in the Prime Minister’s Office. Can you tell us why the government is keen on taking the general amnesty path?
I’m going to answer this question as a professional, not a bureaucrat. Two years ago, a bill was created, which I support even today. As far as I know, this hasn’t been withdrawn. The only thing is that now, in his political speeches, the PM has been saying we have to push forward with reconciliation and amnesty. This hasn’t been passed in the Cabinet nor has there been a request for amendment. So it’s his personal opinion and his party’s opinion. I do not agree with granting general amnesty, and no one has ever asked me about it. I don’t think this is the written opinion of the government, as far as I know.
But the Maoists have requested an amendment.
Well if they have, it hasn’t come through in the form of writing as yet.
Since you are the one to advise the PM on legal matters, has there been any discussion on this regard?
Well whenever I have been asked, I have said that it is the responsibility of the nation to give justice to the people and for the sake of keeping to international agreements we have made. In the two unofficial meetings we’ve had regarding this, instead of asking what should be done in regards to transitional justice, the PM has talked about the CPA, which says that political cases will be withdrawn. The PM’s view is that in times of war, all sides make mistakes and we shouldn’t dig into this. But even the CPA says that grave offences cannot be forgiven or forgotten.
Some politicians say that they didn’t sign the CPA to send everyone to jail. They argue that if that were the case, the CPA would never have been signed.
If you look at the CPA, it says that those cases which are political in nature and were fabricated for political gains can be withdrawn. But alongside that, it also says the serious violations of human rights will be investigated and prosecuted. So while the news may be highlighting reconciliation, the CPA, the 12-point agreement and the Interim Constitution all demand that cases of grave human rights violations be investigated, prosecuted and justice be done. The clause for withdrawal of some special cases is there, but the rest will have to stand the test of the jury.
Do you think the leaders considered the possibility of going to jail when they signed the agreements?
They have signed that the grave violations will be dealt with properly. Once the TRC is formed after the bill passes and becomes law, then the grave violations will be investigated. They hadn’t perhaps thought about going to jail themselves. Realistically speaking, it doesn’t look like they (political leaders) will pass a law that could send them to jail. But without it, peace is not possible.
Is the TRC going to be formed soon?
If it’s not, this peace process will never come to close. It will have to be formed properly, sooner or later.
Do you think the TRC will be able to challenge impunity?
I think some people may be able to get away with a short sentence, but investigation and prosecution will have to happen. Some sort of justice will still be seen. I am hopeful. Otherwise, we cannot answer to the people or the international community, whom we rely so much on. They are putting the pressure on us, and we cannot escape it.
Do you mean to say that if Nepal cannot deal with transitional justice on its own, it will have to rely on the international community to do so?
If you look at Sri Lanka, then perhaps that’s what’s going to happen. If we grant general amnesty and don’t deal with the problem domestically, international pressure will increase and sooner or later, however it takes place and whoever makes it happen, justice will have to be done.