Elu­sive Peace

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.

Southasia - - CONTENTS - By Zehra Khawaja

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.”

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