Nepal is in a post-conflict situation. Therefore, we have the responsibility to ensure a fresh start in the whole state mechanism to promote reconciliation. Reconciliation is necessary for the promotion of democracy and the rule of law. Democracy cannot be strengthened without promoting the rule of law as it is the foundation for democracy. And the rule of law is impossible without addressing impunity and crimes under international law.
Our current efforts must address the need to prevent the possibility of human rights violation and impunity in the future. Then only can reconciliation succeed in its true sense. We have to bring impunity and serious crimes of international concern within the justice system to ensure the rule of law and strengthen democracy in the future. Impunity needs to be addressed for the promotion of state transformation, justice and reconciliation. The past, present and future must be encompassed in this process.
More than 20 countries that emerged after conflict have already incorporated constitutional provisions to avoid human rights violation and impunity in the future, along with reconciliation. Ethiopia that went through conflict like ours has made such an arrangement. The constitution of the Federal Democratic Republic of Ethiopia, 1994 has provisioned Article 28 to deal with crimes against humanity. To comply with international conventions ratified by Ethiopia and other laws of that country, it does not allow any "period of limitation on persons charged with crimes against humanity". The legislature or any other organ of the state does not have the power to pardon or provide amnesty with regard to such offences.
Article 35 of the constitution of the Republic of Croatia, 1990 ensures that no one will be punished for "an act which before its perpetration was not defined by law or international law as a punishable offence, nor may he be sentenced to a punishment which was not defined by law." If after the perpetration of an act a less severe punishment is determined by law, the constitution allows imposing such punishment.
In this way, both of these constitutions have criminalised serious crimes under international law. They refuse amnesty and statutory limitation for such crimes. This has addressed transition in the future, by avoiding the possibility of criminal incidents of the past.
Therefore, as practiced by Ethiopia and Croatia, Nepal should also address the serious violations of human rights by bringing them into the justice system. Our criminal justice system may fail to address the serious human rights violations in the future if we do not incorporate provision for trial against serious crimes under international law and impunity in the new constitution.
Reconciliation is not possible without addressing the past. Reconciliation is not just about forgiving and forgetting. It must address the past and ensure justice for the future. Reconciliation encompasses the state obligation to investigate violations, prosecute and punish the perpetrators. Reconciliation does not bar one from bringing human rights violations before a civilian court.
The efforts of reconciliation should not be a basis for pronouncing amnesty, pardon or any other forms of emancipation to the perpetrators. The obligation under reconciliation should ensure full reparation (not only compensation) to the victims of human rights violation. The state is accountable for addressing the past, ensuring reconciliation and a just future as well as for investigating and legally punishing the offences relating to human rights performed by its authority.
Formulation of a retroactive law and punishment are possible in the crimes recognised by international law and those having criminal liability. The state is accountable for investigating and punishing the offences against human rights committed by a public authority. Reconciliation can work effectively when the violations against human rights and humanitarian law are investigated and decided by civilian courts.
These offenders must be excluded from the benefit of pardon and amnesty to the offenders. It is the obligation of the state to provide reparation to the victims of human rights violations. The state shall make necessary legal and other measures to implement reparation measures and provide compensation for the damage to the victims. The state shall punish those convicted if found guilty.
Therefore, the measure to bring serious crimes under international law must be taken along with the constitution-making process. Our major target is ending impunity and promotion of accountability by guaranteeing justice and the rule of law through the new constitution. We must address the past gross and systematic violation of human rights to ensure accountability in a post-conflict society.
Formulation of a new constitution through a constituent assembly is a rare event in the history of a country. Hence, the future constitution should not emphasise reconciliation only. It should give due emphasis to addressing impunity and serious crimes under international law along with reconciliation.
Reconciliation and peace
This is an issue that can be resolved through the wider concept of the rule of law. Constitutional provision to address impunity is necessary to make the reconciliation process effective. This is complementary to the concept of the rule of law. It emphasises reconciliation at present while providing a judicial system to address serious crimes that may occur in the future. Reconciliation and expectation of sustainable peace are possible only if we ensure a constitutional provision to address serious crimes under international law and impunity is necessary. This will strengthen our justice system against such violations in the future.
(The author is secretary general, FOHRID, Human Rights and Democratic Forum)