Every year, August 30 is observed as the International Day of the Disappeared. It’s always a somber occasion, including in Nepal. According to the International Committee of Red Cross (ICRC), 1,326 people are still missing in Nepal from the time of the Maoist conflict (1996-2006), with thousands more awaiting truth, justice, and reparations. Tellingly, this year, neither the federal government in Nepal nor any of the major political parties organized a formal program to commemorate this day, or even issue a message.
But on the day 41 organizations of conflict victims came up with a charter of 11 points, calling on the government and other stakeholders to undertake steps to reinvigoration the Transitional Justice (TJ) process, and adopt a transparent and consultative mechanism.
This is not the first time conflict victims have made such demands. They have been vocal about their plight since the signing of the Comprehensive Peace Accord (CPA) on 21 November 2006 to formally end the Maoist war. Other vital aspects of the peace process such as integration and rehabilitation of Maoist combatants, and constitution promulgation have been completed. But transitional justice, the last crucial component, remains incomplete. The TJ mechanisms are paralyzed, the law amendment process is in limbo, demands of conflict victims unaddressed, and there is an ever-present risk of internationalization of wartime cases.
The CPA envisaged the two transitional justice mechanisms within six months of its promulgation. But only in 2015 could the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) could come into being. It is widely believed that the two bodies were formed just to fend off domestic and international pressure, and political parties are not committed to their effective functioning.
At the start, both the TRC and the CIEDP faced logistical hurdles. Of late, there has been some improvement on this part, but the two commissions still don’t have sufficient financial and other resources.
Successive governments have been reluctant to amend commissions-related laws in line with the 2015 Supreme Court verdict (more on this later). Without amending the laws, the commissions cannot go beyond the preliminary investigation of the cases filed with them.
Moreover, the commissions’ autonomy has been compromised due to constant political meddling. Speaking to APEX, both incumbent and past TRC commissioners say heavy political meddling makes it difficult to investigate war-era cases independently. In some instances, politicians have even put pressure on officials not to investigate particular cases.
Then there are the disputes within these commissions. As their members are appointed on political basis, there is a lack of unity. “The commissions have been held hostage to internal disputes since their formation,” confirms former TRC member Manchala Jha.
An incumbent senior TRC member speaks of how such disputes contribute to indecision. “In public, politicians commit to take the TJ process to a logical end but they often try to control our functioning,” says the TRC official. Similarly, there is lack of coordination between commission members and staffs. It does not help that members often seek the suggestions of politicians, often those directly involved in the civil war.
The TRC has so far received 63,000 complaints from victims, and preliminary investigations have been completed in 3,700 cases. Through its offices in seven provinces, the TRC has finished sorting these completed cases into three sections: those that need to be put on hold, those that need to proceed with reparations, and those needing further investigation.
The Covid-19 pandemic has further hampered the commission’s task. At the current rate, it could take many years to complete all investigations. In a brief comment to APEX, TRC chairperson Ganesh Dutta Bhatta says vital progress was being made on investigations when the Covid-19 crisis impeded work.
The Supreme Court in its 2015 verdict has flagged some points of The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071(2014) that stand in the way of making the two commissions fully independent and compliant with international standards. There are for instance legal provisions that authorize amnesty even on grave human rights violations. The SC wants to incorporate a clear provision that the commissions cannot recommend amnesty in these cases.
Section 26(5) of the Act says: “… the Commission must decide to make a recommendation for amnesty upon considering agreement and disagreement of the victim as well as the gravity of the incident for granting amnesty to that perpetrator.” The SC finds the word ‘disagreement’ problematic as it may allow for amnesty even if conflict victims don’t agree to it.
Another issue that needs to be addressed is investigating war-era rape and sexual violation cases. As per existing laws, FIR in rape cases should be registered within six months of the incident and there is nothing on sexual violence. Moreover, there are no records of most conflict-era sexual violence cases.
There are other ambiguities in the Act as well. According to it, “gross violations of human rights” include murder, abduction, and taking of hostage, enforced disappearance, causing mutilation or disability, physical or mental torture, rape and sexual violence, looting, possession, damage or arson of private or public property, forceful eviction from house and land or any other kind of displacement, inhuman act inconsistent with international human rights or humanitarian law, and a crime against humanity. The fear is that such a broad definition could leave no room for reconciliation.
According to the TRC official, international practice is to enlist under grave rights violations incidents of extrajudicial killing, rape and sexual violence, disappearance, and torture. But Nepal’s law defines looting and arson of private property as grave rights violations as well.
Expressing its displeasure with the apex court verdict, the government had filed a review petition. After four years of deliberation, on 26 April 2020 a full bench of SC rejected the petition for a review of its 2015 verdict. In the petition, the government had questioned if the SC verdict was in keeping with the spirit of the CPA and the 2007 interim constitution. The petition aimed to nullify the verdict and restore the provision of amnesty and reconciliation at the discretion of commissions and government rather than on informed participation of victims. There is no alternative for the government to amend the law in line with the verdict.
Constant political meddling
Since the start, there has been a systematic effort to politically influence the TJ bodies. Otherwise, politicians fear being slapped with charges of grave rights violations. So they want the TJ process completed under their close watch. Both the ruling Nepal Communist Party as well as the main opposition Nepali Congress believe reconciliation should be sought by honoring the CPA’s spirit—which means no prosecution on war-era cases.
Top political leaders know blanket amnesty is unviable due to national and international pressure. So, perhaps, there could be prosecutions in some token cases to showcase them before the international community?
The ruling party taskforce has now proposed a political mechanism to conclude the transitional justice process, inviting fierce criticism of conflict victims. Experts say the government move is against principles of jurisprudence and transitional justice. Similarly, the taskforce says local and provincial governments shall be motivated to successfully conclude the transitional justice process. This shows political parties want to control the process and settle it as per their wishes. “The ruling party taskforce is silent on justice. It is more focused on reparation and compensation. But the latter is not possible without the former,” says the senior TRC officer.
Since the start of the peace process, a section of politicians, rights activists, and conflict victims have taken a more prosecution-oriented approach, along the lines of criminal justice jurisprudence, while others, including former Maoists, are in favor of blanket amnesty. Transitional justice is caught between the two extremes. “The current debate and functioning of mechanisms are not in keeping with the spirit of a holistic transitional justice process,” says Charan Prasai, a human rights practitioner.
The first component of transitional justice is truth-seeking or fact-finding. But the SC order fails to identify clear working procedures of truth-seeking in war-era rights violations. The two commissions have started looking into some war-era cases but they are struggling in the absence of a comprehensive investigation procedure and detailed action plan. The current path does not guarantee justice, truth, or preservation of state memory.
The second key component is the provision of prosecutions of serious rights violations. A special court is provided for but there is no specific working procedure on its functioning. The law should be clear on the state's duty to investigate, prosecute, and punish.
Another vital pillar of the TRC is related to reparations. The apex court verdicts have from time to time spelled out reparations as the victim’s right, and said that there can be no discrimination in granting reparations. The first step is to classify conflict victims, as not all are likely to get similar reparations. Further steps include ensuring memorialization, provisioning of identity cards, and ensuring livelihoods for poor victims.
According to existing laws a maximum of Rs 300,000 can be provided in reparations but the basis of such an amount has not been clarified. “In the past five years, the TJ mechanisms have failed to formulate a policy on reparations, which shows not enough attention has gone into making the process holistic,” says Prasai. Conflict victims want immediate social, cultural, economic, psychological, and legal support.
Guarantee of non-recurrence is another vital aspect of transitional justice. It calls for deep structural reforms, digging deep into the causes of the conflict. The law does not envision institutional reform, nor has there been any discussion among political parties on how to reform state mechanisms. After the signing of the CPA, there was some discussion on restructuring Nepal Army but nothing happened. “If we fail to address this issue we will set a bad precedent, and the same mistakes could be repeated in future conflicts,” says Prasai.
Risks of internationalization
If credible domestic mechanisms are not set up, there is a risk of internationalization of Nepal’s transitional justice process as per the universal jurisdiction of human rights. Nepali leaders could be arrested abroad. Some rights violation cases have already been internationalized. In 2012 Nepal Army Colonel Kumar Lama was in the UK under universal jurisdiction. Mainly, it is the Maoist leaders who fear arrest when they go abroad. “War-era cases can be internationalized under two circumstances: state reluctance to settle them, and incompetence of domestic mechanisms to deliver justice, and Nepal meets both the criteria,” says Prasai.
In 1998 London Police arrested Gen. Augusto Pinochet, army officer, and dictator of Chile, on rights violation cases. British courts rejected Pinochet’s claim he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.
Post-conflict South Africa, East Timor, and Cambodia formed hybrid commissions with representations from the United Nations and other rights organizations and yet they failed.
Nepal’s election as a member of the UN Human Rights Council puts it under added pressure to act responsibly and accountably on rights issues. Suman Adhikari, the founder chairperson of the Conflict Victims Common Platform (CVCP), argues this is a humanitarian issue that cannot be confined within national borders, and so the option of knocking on the doors of the international community is always there.
Revitalizing domestic process
Experts say war-era cases should be resolved domestically by securing the trust and confidence of all stakeholders. Currently, conflict victims feel alienated. They complain that they are ignored by the TJ mechanisms, the government, as well as the political parties. Similarly, the United Nations and the international community are not lending their support to TRC and CIEDP. “One thing is crystal clear. The two commissions cannot function effectively without the active support of all national and international stakeholders,” says Prasai.
The UN and other international organizations have been urging Nepal to make the domestic process inclusive, transparent, and victim-centered. The CPA has given the UN the right to monitor rights situation until the end of the peace process. Article 9 of the CPA says: “Both parties agree to give continuity to the task of monitoring provisions related to human rights mentioned in this agreement by the United Nations Office of the High Commissioner for Human Rights, Nepal.” Perhaps this is why it has sought some stake in Nepal’s transitional justice process.
There seem to be slight differences in international perception though. European countries and the US have similar positions on Nepal’s transitional justice. The European Union is of the view that Nepal should steer its own course. In a statement on 24 January 2019, the EU said: “In particular, we support a Nepali-designed, Nepali-led process that is consistent with the 2007 and 2015 judgments of Nepal’s Supreme Court and the country’s obligations under international law.”
The UK is of the view that it is for Nepal, the Nepali government, and political parties to decide. In an interview with Republica daily on 3 February 2020, Nicola Pollitt, the British ambassador to Nepal, said: “We would like to see a victim-centric approach and that it would be in line with international practice in these areas. At the same time, we recognize that these things take time and it is not easy. Such a process anywhere in the world takes time. It is our role to support in any way we can but without interfering in what must be the Nepali process.”
India and China have not spoken much on Nepal’s transitional justice. Based on the experience of past five years, it is important that the concerns of both national and international stakeholders be addressed. For this the entire process should be revisited to ensure its broad ownership.