|| The expanding scope of international law has limited national policy choice regarding amnesty for gross violations of human rights and humanitarian laws. In the changed context, no human rights related concern can be seen as an internal matter of any one state. The UN as well as the human rights treaties worked out at international and regional levels have established human rights norms and obliged states to implement them in good faith. These human rights norms in many ways define relationship between a state and its people. But crucial to their implementation are strong monitoring and enforcement mechanisms.
A number of international human rights treaties, international humanitarian law and the UN policies and guidelines have accepted acts of genocide, war crime, crime against humanity and gross human rights violations as crimes by making it state’s duty to prosecute the accused perpetrators. The Convention on the Prevention and Punishment of the Crime of Genocide 1948 confirms that genocide is a crime under international law which the contracting parties are oblighed to look into. The statute of the international criminal court confirms that the most serious crimes of concern to the international community must not go unpunished and that effective prosecution must be ensured.
An amnesty that exempted crimes against humanity from punishment would also be inconsistent with States parties’ obligations under the International Covenant on Civil and Political Rights and other human rights instruments. International humanitarian law embodies four Geneva conventions, their protocols, Hague conventions and international customary rules of war. This body of international law considers certain violations of humanitarian law as war crimes and imposes duty on contracting parties to institute criminal proceedings against perpetrators.
Gross violations of human rights include torture, extrajudicial or arbitrary executions, slavery, enforced disappearance and gender-specific violations such as rape. Major human rights treaties such as the International Covenant on Civil and Political Rights, the Convention against Torture, and other cruel, inhuman or degrading treatment or punishment etc explicitly provide that victims must have recourse to an effective remedy and amnesties that foreclose or impede victims’ recourse to effective civil remedies. Likewise, the Human Rights Committee established under the International Covenant on Civil and Political Right, through consistent interpretation, has make it obligatory for states parties to institute criminal proceedings against perpitrators of serious rights violations.
The UN principles and policies also restrict amnesties that prevent prosecution of alleged perpetrators of genocide, war crime, crime against humanity and gross violation of human rights. The UN policy affirms that states must ensure that those responsible for serious violations of human rights and humanitarian law are brought to justice and victims are assured means to remedy. General Assembly resolution 3074 provides that war crimes and crimes against humanity shall be subject to investigation and the people against whom there is evidence crimes shall be subject to trial.
The Economic and Social Council resolution 1989/65 of 24 May 1989 on “Principles on the Effective Preventionand Investigation of Extralegal, Arbitrary and Summary Executions” provides that in no circumstance blanket immunity from prosecution shall be granted to any person allegedly involved in extralegal, arbitrary or summary execution.
An amnesty policy that prevents prosecution of genocide, war crime, crime against humanity and gross violation of human rights violates obligations arising from ratification of international treaties. Thus amnesties can never be applicable in case of such crimes if the intention is to establish conditions conducive for peace and national reconciliation. Furthermore amnesty for torture and other gross violations of human rights would not be accorded international legal recognition as the duty to prohibit such crimes is jus cogen (premptory norm of international law). National policy to grant amnesties for these crimes therefore does not prevent prosecution before international courts.
The state has been unable to meet its obligation expressed in international human rights treaties. But there is some hope.
In Nepal, both the Interim Constitution and the Comprehensive Peace Accord express state’s commitment to establish truth and reconciliation commission and disappearance commission. But more than five years have passed without any progress on this front as the bills to establish these commissions have been left pending in the legialature-parliament. This was owing to the relucantce of the major political parties to establish transitional justice mechanisms as many feared that transitional justice mechanisms could jeopardize the peace process and might implicate some of their own cadres. However, recent consensus among political parties to establish the two much-awaited commissions brings some hope for the victims who have had to wait for justice for a long time. It goes without saying that the transition justice policy should be victim- oriented and crafted to meet their demands, which in turn will go a long way towards heal wounds of the conflict and foster reconciliation.
The author who is with the Office of the Attorney General has an LLM in Human Rights and Humanitarian law from TU