Thursday, November 22, 2018

Where should these cases have been tried?

The International Commission of Jurists has issued a briefing paper that is critical of the Nepal Army's effort to persuade the country's Supreme Court that charges of human rights violations were properly tried in courts-martial. According to the ICJ's press statement:
“The Nepal Army has sought to overturn the convictions of Maina’s killers by putting forth specious legal arguments that do not hold up under Nepali or international law, or in light of the past decisions of the Supreme Court,” said Frederick Rawski, ICJ Asia Pacific Director.

In the legal briefing, the ICJ sets out (i) Nepal’s obligations under international law and the Nepal Supreme Court’s jurisprudence to investigate and prosecute perpetrators of human rights violations; (ii) the impropriety of jurisdiction by a military court-martial in cases of serious human rights violations; and (iii) refutes the argument that the convictions violated principles of ‘double jeopardy’.

The briefing sets out international law and jurisprudence establishing the Government’s duty to prosecute serious human rights violations as distinct and separate from its obligation to establish the truth, including as part of a transitional justice process.

The briefing comes at a moment when the future of justice for conflict era crimes and human rights violations in Nepal is uncertain.

In July, a draft bill amending the existing legislative framework governing the transitional justice process was criticized by civil society, victim groups and human rights organizations – including in a joint analysis by the ICJ, Amnesty International and Trial International.

While a government panel elicited comments at consultations with victims and civil society, the government never produced a revised draft or conducted follow-up.

“How can the people of Nepal, and particularly conflict victims, have faith in government proposals to press forward on transitional justice when the Nepal Army continues to fight even minimal accountability with disingenuous legal arguments, such as in the case of Maina Sunuwar?” said Rawski.

“The foundation for any process moving forward must be the best interests of victims, a commitment to accountability, and respect for international human rights obligations. This has been affirmed many times over by the Supreme Court,” he added.
The full ICJ briefing paper can be found here

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