TRC ordinance does not meet int'l obligations: Diplomatic community 

KOSH RAJ KOIRALA

KATHMANDU, March 20: At a time when the kin of the conflict victims have expressed strong exception to the “opaque political deal” on the formation of Truth and Reconciliation Commission, the diplomatic community in Kathmandu is preparing to join the chorus with them.

Sources said various European as well as other diplomatic missions in Kathmandu have concluded that an ordinance relating to the proposed TRC published in the Nepal Gazette on Monday not only does not meet Nepal´s international obligations, but also takes a “step backward” from what was proposed by the erstwhile parliament.

“Since it needs various improvements, we are currently in negotiations to pile up diplomatic pressure for necessary corrections in the proposed TRC,” said a diplomatic source.

The latest position of the diplomatic community on the TRC ordinance comes in the wake of conflict victims objecting to the “unilateral” decision of the four major political forces on finalize the ordinance without holding consultations with them. The victims have accused the political parties of failing to meet their international obligations.

The proposed ordinance on TRC, in view of the diplomatic community, fails to meet international standards in many respects despite its optimistic preamble and Section 2, which is contravened by many of its following sections.

“The preamble has all the good words. It wants to end impunity, investigate serious human rights violations during the conflict, provide justice to the victims and create an environment of peace and reconciliation in the society,” said a source familiar with the development.

Though Section 2 of the ordinance provides a list of nine kinds of serious human rights violations, there is no section in the ordinance that makes the perpetrators of crimes listed under Section 2 culpable. Likewise, the commission has been asked to work under the Ministry of Peace and Reconstruction, instead of making it directly answerable to the government or the president.

Section 2 has recognized murder, abduction and hostage taking, disappearance, causing deformities or disablement, physical or mental torture, rape and sexual violence, looting, seizure, breaking or arson of private and public property, forceful eviction from house and land or displacement by any other means and any type of inhuman act committed against international human rights or humanitarian law or other crime against humanity as cases of serious human rights violations.

What has drawn serious concern of the conflict victims and diplomatic community on TRC ordinance are the provisions in its sections 22 to 29, which clearly expose the mala-fide intention to eventually grant general amnesty to even those involved in serious cases of human rights violations during the conflict.

TRC is empowered to facilitate reconciliation if an appeal is either made by the perpetrator or the victim. It is feared that many of the perpetrators will appeal for such an arrangement, which in all likelihood may turn into a forceful reconciliation simply on the basis of a superficial apology or “compensation”, given the high political access of the perpetrators. Likewise, the use of words such as the commission “may”, instead of “must” to seek the consent of the victims prior to effecting reconciliation has increased the risk of justice being denied to the victims concerned.

Section 23, under “Amnesty Provisions” states that while carrying out investigation pursuant to the ordinance, the commission may, if deemed reasonable, recommend amnesty to the perpetrator explaining sufficient grounds and reasons thereof. Subsection 1 of the same section states that the commission may, on the basis of sufficient reasons, recommend for the grant of an amnesty. This is against the spirit of the preamble and other articles.

Likewise, subsection 2 states that notwithstanding anything contained in Sub Section (1), the commission shall not recommend amnesty to perpetrators of serious human rights violation cases, including rape, which lacks sufficient reasons and grounds for granting amnesty.

Additionally, Section 29 of the ordinance empowers the Attorney General to decide, upon a written request from the Ministry of Peace and Reconstruction, whether to file a case, creating cumbersome three-tier barriers “apparently to deny justice” to the conflict victims.