In a 28-page report released today, the ICJ called on the Nepali Government and the House of Representatives to make 19 changes to the draft Army Act, which is currently being considered by parliament.
“While we agree with the importance of bringing the army under civilian political control as swiftly as possible, this Bill is of too great national importance for a poor text to be adopted in haste”, said the ICJ.
The ICJ report, entitled Nepal: Recommendations for amendments to the draft Army Act, identifies two principal areas of concern. The Bill entrenches rather than ends the impunity of the armed forces for serious human rights violations and fails to provide anyone arrested, detained and tried by a Court Martial a range of internationally accepted fair trial guarantees.
The ICJ analysis draws lessons from Nepal’s recent history, especially the causes of systematic impunity in the army, and makes recommendations to bring the Bill into line with Nepal’s international human rights obligations and best practices around the world.
The Bill grants members of the Nepal Army an almost blanket immunity from prosecution for human rights violations and creates a range of procedural rules that can also be used to avoid prosecution for such crimes in civilian courts and even in military courts.
The Bill fails to ensure that the jurisdiction of Courts Martial will be limited to internal military offences and that all other crimes, including serious human rights violations, such as torture, rape, extrajudicial killings and enforced disappearances, will be tried by an ordinary civilian court.
The Bill also fails to provide adequate safeguards to anyone arrested, detained or tried by the military. As a judicial body, the Courts Martial set up under the Bill do not meet the test of competence, independence and impartiality required by the United Nations International Covenant on Civil and Political Rights (ICCPR), which Nepal has ratified.
Nepal-amendments draft army act-report-2006 (full text, PDF)
UN justice military tribunals-Publications-2006 (full text, PDF)
UN principles combat impunity-Reports-2006 (full text, PDF)