'Amnesty cannot be granted
for torture, disappearances, extra-judicial killings'
Sandra Beidas, who has been working in the UN system in various countries for the last 13 years, is currently the Acting Representative of the UN High Commissioner for Human Rights for
She joined the Office of the United Nations High Commissioner for Human Rights in
Beidas shared her views with Kamal Raj Sigdel of The Kathmandu Post on the government's efforts to establish a Truth and Reconciliation Commission (TRC), centering particularly on its recently unveiled draft TRC Bill. At a time when everyone has expressed disappointments over the TRC Bill, Beidas urges the government to act on the recommendations that OHCHR-Nepal and others have made.
Excerpts:
Q: The government has recently unveiled its draft Bill on TRC. How OHCHR, as a UN agency with a mandate to play an advisory role to the interim government in setting up TRC, has observed it? Does this ensure that the government is committed to ending the culture of impunity?
Sandra Beidas: We very much welcome the government providing OHCHR-Nepal an opportunity to comment on the draft Truth and Reconciliation Commission Bill. The setting up of TRC was agreed by the parties as part of the Comprehensive Peace Agreement. The creation of TRC is a very important initiative that can assist a nation in building a culture of peace and reconciliation based on truth, justice and reparation. It should provide an opportunity for the people of
The chronic failure to bring to account perpetrators of such violations will only undermine the chances for peace that is lasting. We do not believe that the Bill in its current form addresses these issues, and have conveyed our serious concerns about the Bill to the prime minister and to the minister of peace and reconstruction.
Q: How do you distinguish "human rights violations" from "violations of international humanitarian law"? Could you also explain the other types of violations that a typical TRC can deal with?
Beidas: In international law there are violations which fall under human rights law, for example those which fall under the International Covenant on Civil and Political Rights, the Convention against Torture and other treaties. Such violations can occur both during peace time and during conflict. And you have violations of international humanitarian law which are violations committed only during an armed conflict, whether it is of an international nature or of an internal nature. These fall under another body of law called the Geneva Convention which just relate to armed conflict. In
A truth commission can also investigate other issues such as social, economic and cultural injustices, discrimination, internal displacement, destruction of property, for example the demolition of religious sites or schools. So, it involves addressing the most serious violations as well as looking into a broader array of injustices.
Q: OHCHR-Nepal has already expressed its disappointments over the TRC Bill through its August 4 press release. What are the main flaws in the Bill for which you are disappointed?
Beidas: The primary flaws of the Bill, which are also shared by civil society, are three-fold. First, contrary to international standards on the establishment of truth commission, the draft fails to ensure TRC is an independent, impartial and competent body, free of government interference. The draft provides for the government involvement in the selection of commissioners, the appointment of staff, funding of TRC, and the removal of commissioners.
Second, contrary to
Third, rather than seeking truth, justice and reparations for victims, the Bill provides for TRC to be heavily involved in ensuring victims and perpetrators reconcile, but in a manner that is inconsistent with international standards for truth-seeking processes. Only victims who reconcile with perpetrators will be eligible for compensation. There are no other larger truth-seeking elements to the reconciliation process and little hope for justice since those perpetrators, who are reconciled with their victims or victims' families, will not be recommended for prosecution. This is the case even if perpetrators committed gross violations of human rights, including torture, extrajudicial killings and enforced disappearances.
Q: What should have been according to the international standard? I mean, what would have ensured that the TRC body is independent, impartial and competent, free of government interference?
Beidas: Truth commissions will garner the greatest public and international support if their members are selected through a consultative process. Such an
appointment process should include a representative selection panel,
appointed by a variety of sectors or societal groups (including civil
society), to vet the nominations, interview the candidates and then
recommend the final commissioners to the appointing authority. All efforts
should be made to ensure that Commissioners represent the diversity of
Nepali society, including based on ethnicity, gender, caste, geographic
region and religion.
Lessons learned from looking at the experiences of other truth commissions which were set up in different countries around the world indicate that the selection process must first of all be transparent, involving a full array of actors, not only government but civil society, religious organizations, castes, ethnic groups, academics, lawyers, etc.
The intention is to have a body that can be considered credible. But if the body is too politicized, too close to the government or one of the groups involved in atrocities, this undermines its work and credibility.
Q: You said the Bill does not meet international obligations. What are
Beidas: The obligations under the international law are the treaties that the country has signed and ratified. When a government ratifies an international treaty, the treaty supersedes anything the domestic law says; international law takes precedent over domestic law. So in the context of this country, the government has ratified most of the significant human rights treaties, including the International Covenant on Civil and Political Rights, as well as the Convention against Torture. These are among the legal obligations of the government of
Q: You said there was little hope for justice since those perpetrators who are reconciled with their victims or victims' families, will not be recommended for prosecution. Does it mean that, according to the Bill, all the perpetrators—even if they have violated human rights, committed genocide, or any other form of serious crime—will be granted amnesty, if the victims are ready to reconcile with the perpetrators?
Beidas: Yes. The law says if the victims reconcile with the perpetrators then there is no prosecution even if s/he has committed rape and torture, and murder.
Q: Does reconciliation depend only on the victims' temperament or mood to reconcile with their torturers/enemies, or all the victims are counseled for adopting that process?
Beidas: This Bill has inbuilt coercive elements that unnecessarily put undue pressure on victims and their families to accept the apology. The victims have to accept the apology. The incentive, in a country which is poor, is significant. If you reconcile, you can compensate, if you don't you get nothing.
Q: Had the government consulted OHCHR-Nepal for technical inputs in preparing the draft TRC Bill?
Beidas: Yes, the government provided a copy of the Bill to OHCHR-Nepal and requested comments. Prior to receiving the Bill, OHCHR-Nepal representatives had a number of meetings with the Ministry to share international standards and best practices on the establishment of truth commissions.
Q: What sort of recommendations had you made to the government?
Beidas: Our report to the government includes a long list of recommendations, particularly related to ensuring the independence of the commission and to removing provisions which grant amnesties for those who are involved in serious human rights violations. But most importantly we believe that before the TRC Bill is redrafted there should be very extensive, nationwide consultations with victims, civil society and other actors so that there is a broad consensus on what a TRC should look like for
Q: If OHCHR-Nepal thinks the government has not implemented its recommendations, does not it prove that the government has violated the agreement that it signed with OHCHR-Nepal? What would be your efforts in such a situation when you are not being cooperated by the government?
Beidas: The government has informed civil society organizations and OHCHR-Nepal that the Bill was a first draft and that there will be further revisions and meaningful and genuine consultations. OHCHR-Nepal is hopeful that the government will take into account the serious concerns expressed by civil society, by the European Union, by OHCHR-Nepal and others, the first step being to hold extensive consultations.
Q: Independent human rights observers have dubbed the Bill "Amnesty Bill" and warned that it would only promote the culture of impunity. Some have even said the government should start all over again to write a new draft bill. To what extent are these critics right?
Beidas: The Bill ensures continued impunity for gross violations of human rights and serious violations of international humanitarian law by providing for amnesty for such crimes. Such amnesties would place
Q: The draft seems to be much lenient towards the crimes meted out in course of fulfilling one's duty or under some political motives. What is OHCHR-Nepal's stand on
Beidas: OHCHR-Nepal is particularly concerned with provisions of the Bill that provide amnesty for serious violations of human rights and crimes against humanity if such crimes committed as part of 'one's duty or for political purposes.' This would seem to cover most of the serious crimes committed during the 10-year conflict. International law is quite clear that amnesties for such offences are not available. As the Nuremburg trials of Nazi officials made clear, political motivation or acting under orders are not defenses to such atrocities.
Q: If so, what sorts of crimes are amnestied as per the international standards?
Beidas: International law allows amnesty in certain circumstances. However, international law and UN principles state that amnesty cannot be granted for what are called gross violations of human rights: genocide, war crimes, crimes against humanity and other serious violations of human rights such as torture, disappearances, extra judicial killings.
Q: Have you worked for the preparation of TRC Bill of several other countries which went through conflict transformation?
Beidas: There is no one model for how a nation addresses mass crimes of the past, though there are best practices and principles that have been garnered from more than 30 truth commissions established since the 1980s. Any transitional justice process must be a national choice and not imposed from the outside, though it must not violate international standards and principles.
Secondly, the timing for a truth commission is key: the conflict must have ended. Addressing past crimes during conflict or in the early transition period after a conflict is not a conducive environment in which victims and their families can come forward and feel safe and secure to tell their stories and identify perpetrators.
Thirdly, there must be genuine political will from government to cooperate with an independent and impartial body like a truth commission.
Fourthly, such processes must be part of a multi-faceted and comprehensive transitional justice strategy in which truth commissions are complimentary to other transitional justice processes such as prosecutions, vetting and reparations.
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