After ten years, there is still lack of clarity in the peace legislation aimed at bringing in transitional justice to Nepal. The fear is that the situation could again throw the country into conflict and violence.
To end the crippling war that continued for more than 10 years killing over 17,000 Maoist rebels, the Nepal government signed a Comprehensive Peace Agreement (CPA) with rebel CPN (Maoist) on November 27, 2006. Unfortunately, even after ten years, transitional justice – an important component of the peace process – is still elusive as the justice mechanisms lack resources and a strong mandate. This inordinate delay could push Nepal towards a new dimension of conflict, resulting in a possible return to violence.
The 2004 Secretary General’s Report to the Security Council defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large scale past human rights abuses in order to ensure accountability, serve justice and achieve reconciliation. The primary objective of transitional justice is to end impunity and establish the rule of law in the context of democratic governance.”
To ensure transitional justice for the sufferers of the Nepal civil war, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) were made a part of the peace process and considered instrumental in ending the decade-long conflict. The two commissions were, however, unfortunately formed on February 10, 2015, nine years after the CPA was signed.
The origins of transitional justice can be traced back to the post-World War II period. After the Second World War, the Nuremberg Trials held between 1945 and 1949, were assigned the task of prosecuting those who committed serious violations of human rights during the war, to bringi Nazi war criminals to justice. Although the legal justifications for the trials and their procedural
innovations were controversial at the time, the Nuremberg trials are now regarded as an important precedent for dealing with later instances of genocide and other crimes against humanity.
The second such trial is currently going on in Bangladesh. The International Crimes Tribunal of Bangladesh is a domestic war crimes tribunal set up in 2009 to investigate and prosecute suspects for the genocide committed in 1971 during the Bangladesh Liberation War. However, International organisations like Amnesty, Human Rights Watch and even the UN have taken a queer stand on the implementation of war crime verdicts in this case. They say that the trial procedure was flawed. They have also criticised the practice of hanging of criminals in general.
Similarly , the Nepalese press also has reservations about transitional justice in Nepal. According to a Kathmandu-based newspaper report, “Human rights activism in Nepal has come largely from the urban elite, while the majority of conflict victims are poor and belong to rural areas. The transitional justice commissions, loyal to their political allies, are not victimfriendly in their procedure. They have failed to address victims’ needs through a legislative route to truth, justice and reparation, with a continuing lack of adequate laws and political will to solve the conflict era cases. Both commissions have ‘finished’ their work without fulfilling their mandate (the commissions’ two-year mandate ends in February, 2017) or developing a roadmap to identify the root causes of conflict, address poverty and structural violence.”
In short it’s not all that easy to ensure transparent and acrossthe-board investigation of crimes committed --- especially war crimes. To record witnesses and cross examine the surviving witness to fulfill the requirements of justice is undoubtedly a herculean task. Will the Nepal government be able to provide transitional justice to the war victims without being biased and controversial? The way things are moving, certainly not.
Even the members entrusted with the task by the Nepal government are in a fix due to the lack of clarity on definition of Commission of Investigation on Enforced Disappeared Persons (CIEDP). It is facing obstacles in carrying out a preliminary investigation of the complaints, in which relatives of the victims have registered the death of the disappeared persons. “We are supposed to find out the truth behind the disappearance of a person, but the incidents of death fall under the jurisdiction of the Truth and Reconciliation Commission,” said CIEDP Chairperson Lokendra Mallick in a recent interview. Moreover, the government did not amend the transitional justice law even after the Supreme Court ordered to streamline it. Besides, the government has not criminalized the act of disappearance. The commission had requested the government to reform the law and enact a new law a year ago. “We have not been able to decide how to deal with complaints of the individuals who were detained incommunicado for weeks and months so we cannot proceed with the investigation amidst legal conundrum,” said Mallick.
Naturally, under such circumstances it is not so easy to provide transitional justice to the victims of the war. But then, taking over eight years to constitute the commission is simply criminal and all those involved in undue delay must be put to task. Moreover, the hurdles being faced by the members of CIEDP must be removed without any further delay to provide much needed relief to the victims who are going through pain and agony for the last eight years.
Regretting the delay in constituting the commission, the TRC Chairman said. “As it has been eight years since the end of the conflict in Nepal, it could be difficult to gather evidence on various incidents. Then, there could be problems pertaining to cases about court verdicts and political parties’ rejection. There are also contentions about whether events occurring during the conflict period were purely human rights violations or not or if they took place during combat or not. But we in the TRC have decided that no matter what our personal opinions are on such issues, the Commission is a body of high moral integrity. We will do our best not to go into voting on such matters but decide through consensus. We are in the process of forming the regulations and have already formed a task force to do so.”
Apart from this important component of the Agreement, very little or no progress has been made on a number of provisions, such as elimination of discrimination, adoption of a common development concept, scientific land reform, protection and promotion of national industries and establishment of the rights of citizens to education, health, residence, employment and food security besides socio-economic security of backward communities. The Agreement includes the Maoist commitment to end the fighting, pledges by the political parties to institutionalise federal democracy, recruitment of Maoist fighters into the Nepal Army, elections to the Constituent Assembly (CA), adoption of a new constitution and transformation of the Maoists into a democratic entity
Will the Nepal government be able to provide justice to the war victims without being biased and controversial?
hve been somehow met.
According to available reports, a number of factors have contributed to the slow and weak implementation of the CPA. The political parties lost several years in blaming and condemning each other. The formation of organisations similar to paramilitary structures like the Young Communist League, Youth Force, Tarun Dasta, Madhes Bahini and others created confusion among different political parties, stopping them from coming out with a definite decision. On the other hand issues like lack of effective political and institutional mechanisms to direct the peace process, top-down approach of the peace implementation process, lack of political coexistence and changes in the power equation after each assembly elections, vested interest-based negotiations adopted by the parties and lackluster performance of civil society as a watchdog were other factors behind the sluggish implementation of the CPA.
All said and done, the only aspect of the peace process — giving justice to the conflict victims and punishing the rights perpetrators – is yet to be concluded though the two commissions formed with a mandate of two years which will expire on February 9, 2017. It was expected that the TRC and CIEDP would conclude their jobs within the deadline. But both the commissions have just been able to collect as many as 57,753 complaints of rights violations from across the country in nine months and the process of scrutiny of each case has yet to be started. Apparently, it seems that it is impossible to complete the task before February 9, 2017, the expiry date.
Transitional justice has been very appropriately defined by Siddharth Varadarajan, former Editor of The Hindu in a speech he delivered at a seminar in Kathmandu in January, 2016 organised by Himal Southasian and the Center for Transitional Justice. He said, “Transitional justice cannot just be about addressing past crimes or even about preventing future ones. It also has to help all of us in our own different regions put a closure on historically-evolved grievances. Unless the historically-evolved grievance of, say, the people of Kashmir is not addressed, unless their sacrifices are not respected, unless homage is not paid to all the people who were victim to the violence, it will be very difficult for people living in these societies and communities to feel a sense of closure.”