Feb 11, 2019 | News
The ICJ, Amnesty International and TRIAL International today called for the Government of Nepal to commit to a transparent and consultative transitional justice process that complies with international law and the judgments of the Supreme Court of Nepal.
On 6 February, the Government of Nepal extended the mandates of the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearance of Persons (CIEDP) for an additional year and committed to the selection of new commissioners by April 2019.
Following the announcement, the ICJ, Amnesty International and TRIAL International voiced concerns about past approach to transitional justice and urged the Government to ensure that the next two months are used to get the flawed process on track.
The organizations warned that this should not become another missed opportunity to ensure that victims are provided the justice, truth and reparation that they so desperately seek.
“A further one-year extension will be meaningless if measures are not taken to secure the independence and impartiality of the commissions,” said Frederick Rawski, ICJ Asia Pacific Director.
“This can only be achieved through a transparent selection process driven by a genuine will to combat impunity – not just for conflict victims, but for future generations,” he added.
The three organizations reiterated their view that the process to date has failed to deliver justice, truth or reparation for victims of crimes under international law and gross human rights violations or establish laws and institutional safeguards to ensure that such crimes are never repeated.
The organizations underscored the need for independent, competent and impartial commissions, compliance with international law, and the meaningful participation of conflict victims, civil society and National Human Rights Commission in the design and implementation of the process.
“This is a great opportunity for Nepal to learn from its past, as well as experiences from other post-conflict societies, that the credibility of transitional justice process ultimately lies on the integrity, competence, independence and expertise of the commissioners. The independence of the Commission, together with a legal framework in accordance with international law, will make or break the success of the commitment to guarantee justice, truth and reparation,” said Biraj Patnaik, South Asia Director of Amnesty International. “The process for appointing new commissioners must be transparent and open to public scrutiny. Victims and civil society must have a robust opportunity to propose and vet candidates.”
The organizations also noted with disappointment that substantive legal concerns raised repeatedly by victims, civil society and the international human rights community have gone unanswered.
The government has not given a clear indication as to whether or how these concerns will be addressed.
“In addition to its obligation to ensure that conflict victims have access to an effective remedy and reparation, the authorities have a separate and independent obligation to investigate and if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility in fair trials before ordinary civilian courts – and, if found guilty, punish them with appropriate penalties which take into account the grave nature of the crimes,” said Helena Rodríguez-Bronchú, Head of TRIAL International’s program in Nepal.
“These obligations are clearly established in international law, as well affirmed in ruling after ruling by the Supreme Court. It is about time that the Government stopped proposing measures that are clearly inconsistent with the letter and spirit of those judgements,” she added.
Concerns raised about existing, and proposed, legislation include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability (including punishment proportionate to the seriousness of the crimes); and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families
The ICJ, Amnesty International and TRIAL International had previously submitted a legal analysis of draft transitional justice legislation circulated in 2018, including recommendations on how to ensure compliance with international law and good practices.
Dec 18, 2018 | Multimedia items, News, Video clips
Lawyers from a diverse range of countries, including Egypt, Lebanon, Nepal, the Philippines, Tunisia and Uzbekistan have identified the many barriers that women typically face in accessing justice in their countries.
Common trends and practices identified included socio-economic marginalization, gender stereotypes and patriarchal attitudes.
The observations came during two training workshops held in Geneva in June and September to coincide with sessions of the UN Human Right Council and UN Committee on the Elimination of Discrimination against Women. The workshops were part of a project on enhancing women’s access to justice through UN human rights mechanisms, supported by the Permanent Mission of the Federal Republic of Germany to the UN in Geneva.
A lawyer from Uzbekistan noted that domestic violence flourishes in states where common attitudes hold that this is an internal matter to be resolved within families.
A particular concern raised in respect of Lebanon was discrimination linked to transference of nationality, where Lebanese women married to a foreigner cannot pass their nationality to their children but Lebanese men married to a foreigner can.
Meera Maharjan, lawyer from Nepal, noted the cultural, educational and economic barriers that impede women from being able to take on decision-making roles and the impact this has on the exercise of their rights.
Malaysian lawyer Yvonne Lim explained that the women who are often in need of access to justice tend to be from the lower rungs of the socio-economic strata and lack the resources, support and basic awareness about their human rights and the remedies that may be available to them.
During the September training session the ICJ organized a side event to the 39th session of the Human Rights Council on ‘applying a women-centred approach to access to justice’ to further explore these issues.
Secretary-General Saman Zia-Zarifi moderated the event and panelists included:
• ICJ Commissioner Justice Sanji Monageng, former Vice-President of the International Criminal Court
• Lisa Gormley, Research Officer for the Centre for Women, Peace and Security at the London School of Economics
• Meera Maharjan, Nepalese lawyer and legal officer for Resilience for Sustainable Women Empowerment (RISE)
You can watch a recording of the event, and interviews with two of the workshop participants below.
https://www.facebook.com/ridhglobal/videos/565112000574216/UzpfSTQ3MTQ2NzA4NjIyMTM3MzoyMjEyNTUzNjc1NDQ2MDMw/
Dec 2, 2018 | Events, News
On 1-2 December 2018, the International Commission of Jurists (ICJ) held its 2018 Southeast Asia Regional Judicial Dialogue on enhancing access to justice for women in the region.
Participants included judges from Cambodia, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Thailand.
The discussions, held in Bangkok, were focused around resources important for judges to aid in enhancing the capacity of their peers in eliminating gender discriminatory attitudes and behaviours towards women in their work. These resources include a training manual on the use of the Bangkok General Guidance for Judges in Applying a Gender Perspective, and a draft reference manual on women’s human rights and the right to a clean, healthy, safe and sustainable environment.
Frederick Rawski, ICJ’s Director of the Asia and the Pacific Programme, opened the dialogue by emphasizing how important it is for judges to be gender sensitive in their delivery of justice. This could only be done by applying a framework that gives primary attention on ensuring recognition of the applicable human rights, institutional support for the promotion of these rights, and accountability mechanisms for their implementation.
Roberta Clarke, Commissioner of the ICJ and Chair of the organization’s Executive Committee, noted that this judicial dialogue demonstrates the ICJ’s commitment to have a sustainable contribution to the implementation of international human rights standards at the domestic level. She hoped that the judges could contextualize the resources presented and bring these back to their countries for trainings of their peers.
This judicial dialogue is part of a joint project on access to justice for women that ICJ is implementing with UN Women.
Anna Karin Jatfors, UN Women-Asia Pacific’s Interim Regional Director shared that gender stereotypes and social norms which discriminate women are not unique in each country. She pointed out the importance of the ICJ and UN Women collaborating in this project to deconstruct this image to bring better access to justice to women in the region.
Overall, the dialogue was rich and substantive, with the full and active participation from all participating judges who shared their views and experiences on countering gender discrimination in cases before them. At the end of the judicial dialogue, the participating judges expressed strong interest to use the resources for capacity building initiatives of their peers in their own countries.
Contact
Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206), email: Emelynne.gil(a)icj.org
Oct 1, 2018 | News
From 29 to 30 September 2018, the ICJ convened a 2nd two-day workshop on application of international law and standards, remarkably focusing on the Minnesota protocol, with special reference to investigation of alleged unlawful killings and enforced disappearances for public prosecutors of Nepal.
The workshop was organized by the ICJ South Asia office and took place as part of the ICJ’s Global Redress and Accountability Initiative, “increasing the knowledge and capacity of lawyers, prosecutors and investigators to deal with challenges of impunity and access to redress.”
The participants of the workshop included 18 public prosecutors working in District Government Office in Kathmandu, Lalitpur, Bhaktapur and Kavrepalanchok, Nepal.
The event started with opening remarks by the Attorney General of Nepal and former minister of Law and Justice, Agni Kharel.
In the opening remarks, Agni Kharel highlighted both commitments made and efforts by the Nepal government in order to protect and promote human rights as well as justice for victims of human rights violations.
Expressing pleasure on the theme of the workshop, he also said the public prosecutors will be benefited as well as be competent to use the knowledge and learning from the workshop in their works.
Senior Legal Consultant of the ICJ Nepal – Govinda Bandi, one of the experts of the workshop and speaker of the opening ceremony, highlighted the objectives of the workshop.
Kingsley Abbott, Senior International Legal Adviser at the ICJ, presented an overview of the relevant international human rights legal framework that applies to the investigation of alleged killing and enforced disappearances.
He further presented an introduction and overview of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) and ICJ practitioners Guide no. 9. Both instruments were core materials used at the workshop.
Other speakers included Govinda Bandi, Senior Legal Consultant at the ICJ, who presented on the relevance of the Minnesota protocol in investigating on alleged unlawful killing and enforced disappearances.
Prof. Dr. Hariwar Wasti, Medico-legal expert at the IOM Department of Forensic Medicine of Government of Nepal, presented a power point presentation on the role of forensics in the investigation of gross human rights violations with reference to the Minnesota Protocol.
The workshop focused on investigation techniques of alleged unlawful killings highlighting the significance of public prosecutors in Nepal.
It was also focused on collection and preserving the security of evidences and potential use of the evidences for victims’ right to justice and reparation.
The workshop also covered medico-legal documentation techniques of crime scene and dead wearing tie body, collection of DNA evidence, and drafting of autopsy reports and crime file management.
It was also discussed and outlined some approaches of using the Minnesota protocol in Nepal in the final session of the workshop.
This workshop followed the national workshop the ICJ hosted between 13 to 14 July 2018 in Dhulikhel, Nepal on the investigation of alleged unlawful deaths and enforced disappearances for more than 20 human rights lawyers from diverse regions of Nepal.
Jul 8, 2018 | News
As the government begins a process of consultations around proposed amendments to the transitional justice mechanisms, the ICJ and Human Rights Watch have called on authorities to ensure the amendments comply with international human rights standards.
The government must also take into account concerns of all stakeholders, the organizations said.
The current draft law fails to address the many gaps in Nepali law that make it difficult to prosecute, especially at senior levels, for international crimes such as torture and crimes against humanity.
The Nepal government has ensured an extension of its two transitional justice commissions while also committing to future amendments to comply with international standards and Supreme Court rulings, the groups said.
The government is holding consultations around a proposed Commission on the Investigation of Enforced Disappeared Persons (CEIDP) and the Truth and Reconciliation Commission (TRC) (Amendment) Bill.
“While Nepal has engaged in a transitional justice process over the last few years, with official commissions collecting complaints, holding meetings and generic consultations throughout the country, this is still without any tangible result, and victims say it has left them confused,” said Brad Adams, Asia Director at Human Rights Watch.
“For a successful, internationally accepted process, the authorities in Nepal should focus on providing justice to victims, and not engage in trying to get perpetrators off the hook,” he added.
Human Rights Watch and the ICJ issued the statement after the Nepal government shared a draft bill purportedly to amend flaws in the laws of the CEIDP and TRC Acts.
Ahead of submitting further analysis and recommendations in the consultative process, the organizations said that Nepal authorities should take into account concerns of all stakeholders, including the groups representing victims of serious crimes by all sides during the civil war, other civil society organizations, the National Human Rights Commission (NHRC) and the United Nations Office of the High Commissioner for Human Rights (OHCHR).
Nepal’s new government under Prime Minister Khadga Prasad Oli of the Nepal Communist Party promised that the Nepali law on transitional justice would be brought into conformity with international law and standards as had been directed several times by the Supreme Court.
After years of previous governments failing to comply with the Supreme Court rulings, the new attorney general had announced that reforms to the law were underway, which victims’ groups said gave new hope, and as explicitly requested by the United Nations Human Rights Council (UNHRC) and human rights organizations.
While positive changes are noticeable including in relation to reparations, the proposed law authorizes the two transitional justice commissions to authorize prosecutions without strengthening the commissions themselves, proposes a special court without clear guidelines on impartial investigations, and includes a section permitting non-custodial sentences for the most serious crimes.
These raise concerns that the proposed draft may not meet international standards of justice and accountability.
The two commissions, which experts say require crucial bolstering, have conducted country-wide hearings and gathered nearly 60,000 cases between them.
Victim groups complain that the process has been arbitrary and confusing.
The organizations also noted a number of continuing obstacles to justice, which the bill has not addressed.
These include the continued failure to incorporate specific crimes into Nepali law that are serious crimes under international law, including torture, enforced disappearance, war crimes, and crimes against humanity.
In addition, the bill provides for the wholly inadequate sanction of short-term community service as an alternative punishment for those convicted of serious crimes, which may constitute effective impunity.
Nor does the bill address the question of command and superior responsibility for such crimes, leaving doubt as to whether those at the highest levels of authority will be held accountable for these crimes.
The international organizations were invited to a meeting with the attorney general and other stakeholders on June 21 but did not have a translated draft available ahead of the discussion.
However, during the consultation, the groups stressed the need for meaningful consultations on the bill.
The organizations noted also that universal jurisdiction, which allows for any state to prosecute those believed to have engaged in torture, enforced disappearance, or other serious crimes under international law, will remain an available option for victims to seek justice in cases of serious abuses during the civil war.
“Without a justice process that meets international standards for prosecuting the most serious crimes, such as torture and enforced disappearances, anyone suspected of such crimes in Nepal risks arrest, extradition, and prosecution in the many countries that are committed to prosecuting such crimes,” said Ian Seiderman, ICJ Legal and Policy Director.
“It is very welcome that the Nepal government is finally looking to address longstanding demands of war victims and should use this opportunity to abide by its obligations, draw up security sector reforms, and pave the way to end impunity,” he added.
Full text in English (PDF): Nepal-ICJ-HRW-Transnational-justice-reform-News-Press-releases-2018-ENG
