Nepal's decade-long Armed Conflict (1996 to 2006) resulted in massive violations of human rights and humanitarian law, perpetrated by state and non-state actors. The conclusion of the Comprehensive Peace Accord (CPA) on 21 November 2006 not only ended the conflict but vowed for revealing the truth, providing reparation to the victims and thereby paving the way for justice. Subsequently adopted Interim Constitution and a number of other political agreements also promised for the same. However, it's very unfortunate that even after 12 years of the signing of CPA; no tangible result has been achieved. This is very distressful for thousands of the victims and entire human rights community.
Even if the transitional justice process is taken forward smoothly and truth is revealed, there are various barriers including the constitutional one in the administration and execution of the transitional justice (TJ). The Article 24(4) that incorporates the "principle of non-retroactivity’ reads: “No person shall be liable for punishment for an act which was not punishable by the law in force when the act was committed nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offence.” As Article 20(4) of the CON bars the retroactive prosecution of conflict-era crimes, except crimes of enforced disappearance, no other violations can be prosecuted. Enforced disappearance is an exception due to the fact that it is recognized as "continues crime", meaning that unless whereabouts of the disappeared is traced out, the crime is consider to be continuing.
In order to pave the way for justice, there are twofold solutions. The easiest one is the adoption of the harmonies interpretation by the Supreme Court of Nepal that declares the permissibility of retroactive law under the constitution without its amendment. This could be done by virtue of Nepal's international legal obligations including under article 15(2) of the ICCPR and relevant jurisprudence. Article 15(2) of ICCPR to which Nepal is a party reads: "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations".
Such an exception to the principle of non-retroactivity under the International Humanitarian Law (IHL) and International Human Rights Law (IHRL) has been developed to try the gross violation of HRs in post conflict era. Into line with the international standards, the Supreme Court of Nepal has also acknowledged the need of such approach in the Nepalese context prior to adoption of the 2015 Constitution. This issue was particularly dealt with in response to Madhav Kumar Basnet on behalf of JuRI- Nepal v. Office of PM and Council of Ministers et al dated 18 Poush 2074 (2 January 2018).
However, in view of the fact that new constitution has come in force with an explicit prohibition of the retroactive law, a proper solution is indispensible. If political parties are genuine to ensure justice for the victims, they would agree on the option of the amendment of the constitution to pave the way for non-retroactive prosecution of serious crimes committed in course of the armed conflict. If that's not the case, the Supreme Court will have to step in to adopt a harmonious interpretation. Public spirited individual activist of a member of victims groups could consider taking a PIL to the court to offer an opportunity for the Court to address this problem by way of the interpretation.
About the Author
Manoj Kumar Yadav is a law graduate. He was awarded the Chautari Peace Research Fellowship 2017 funded by UNDP.