Lack of seriousness on the part of political par­ties and their ‘delay tactics’ have increased the risk of ‘international intervention’ in Nepal’s Transitional Justice (TJ) process, which has not made substantial progress since the sign­ing of the Comprehensive Peace Agreement (CPA) in November 2006. Experts and observers say failure to amicably settle war-era human rights cases would attract the wrong kind of international attention. Avert­ing such a scenario requires Nepal to address the issue through credible national mechanisms by taking all stakeholders on board. But major par­ties that have been in power since the start of the peace process seem indifferent.

 

Of late, the international community has piled up pressure on the government to settle the tran­sitional justice process, a vital part of the peace process, at the earliest. In January, the United Nations in Kathmandu, together with nine foreign embassies, urged the government to clarify how it intends to take the TJ process forward, to great annoyance of the government and the ruling party leaders.

 

This month, five special rapporteurs under the United Nations High Commissioner for Human Rights wrote a 10-page letter to Foreign Minister Pradeep Gyawali seeking transparency and close consultation in selection of members of the two transitional justice mechanisms, namely the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Enforced Disappeared Persons (CIEDP). Gyawali has repeat­edly assured the international community that there will be no blanket amnesty, but the commit­ment has not been translated into action.

 

 'I have an impression that the army will keep its cards close to its chest until there is a broad political agreement'

Binoj Basnyat,a retired Nepali Army major-general

 

Dare not fail us

Conflict victims, though divided on some issues, are getting impatient and losing hope. “Parties want to derail this process by employing delay tactics. They are yet to consult with us on how to amend the law and conclude the TJ process,” says Suman Adhikari, former Chairman of the Conflict Victims Common Platform, an umbrella body of activists seeking justice and repa­rations.

 

Conflict victims say if national mecha­nisms fail them, they will have no alterna­tive but to internationalize this issue. In fact, some have already approached the UN and other international organizations for justice. The recent visit of the Nepal Communist Party Co-chairman Pushpa Kamal Dahal to the US, ostensibly for his wife’s treatment, also highlights the gravity of the TJ process. A complaint was filed at the Federal Bureau of Investigation to arrest Dahal and investigate war-era human rights violations, which forced the US government to issue a ‘no investigation’ circular.

 

Those complicit in rights violations can be arrested anywhere in the world under the principle of ‘universal jurisdiction’ of human rights. Earlier, Kumar Lama, a senior Nepal Army official, was arrested in the UK on charges of war-era violations. (He was later tried and acquitted.)

 

“If the ongoing national process fails to end pervasive impunity and deliver justice and reparations to the victims, they will knock on the doors of the United Nations or international courts,” says Geja Sharma Wagle, a political analyst who has been closely involved in the peace process. “But internationalizing the TJ process would be suicidal for the government as well as the ruling and opposition parties. As such, this process should soon be concluded by tak­ing conflict victims into confidence.”

 

It has been almost 13 years since the CPA was signed, but one key aspect of the peace process—providing justice to conflict victims—is still prickly. As per government data, around Rs 166 billion has already been spent on the peace process. But there has been little progress on the TJ front. The office bearers of the two commissions—the TRC and the CIEDP, which were set up in 2015—recently took retirement, and the government has formed a panel for new appointments.

 

Deadly delay

Experts, however, say having new faces would not be sufficient. They are of the view that the TRC Act should be amended in line with the Supreme Court verdict, which means the TJ process should meet interna­tional standards, and amnesty should not be given on serious rights violations such as rape, torture, killings, and disappearances. Additionally, the commissions should be empowered to recommend legal action against those involved in grave violations.

 

A former TRC member blames lack of support from political leadership, failure to amend the law, and inadequate resources for the two commissions’ dysfunction. No amendment to the law means a continu­ation of the same tendencies for the next five years. “It seems that some ruling party leaders think they can kill this process by using delay tactics, but that is not possible. The delay would only erode trust in our national mechanisms and attract interna­tional interest,” says a high-level official familiar with the process.

 

Mounting international and domestic pressure has made some leaders from both the ruling and opposition parties realize the importance of concluding the TJ process through national mechanisms. But ex-Mao­ist leaders are reluctant to go by the SC ver­dict. By and large, the former rebels want to settle the process through reparations, but this alone will not be acceptable to the international community or to the conflict victims. Although the erstwhile CPN-UML leaders are receptive to the idea of amend­ing the law in line with the SC verdict, Prime Minister KP Oli is under pressure from co-chair Dahal not to do so.

 

Among others, the issue of transitional justice was one reason for the unification in 2017 between the two communist par­ties led by Oli and Dahal respectively. Oli has reportedly assured Dahal that no case would be filed against him in national or international courts.

 

On war-era cases, the Nepal Army and the main opposition Nepali Congress hold sim­ilar positions to that of the government. NC President Sher Bahadur Deuba had served as the prime minister while the Maoist conflict was at its peak and had imposed an emergency; he fears he could be dragged into war-era cases, and therefore prefers almost blanket amnesty in those cases.

 

Binoj Basnyat, a retired Nepali Army major-general, says, “The army proceeds as per the government’s decision regarding gross rights violations during the conflict. So, first, a common political direction that meets international principles and national rules on human rights needs to be charted. I have an impression that the army will keep its cards close to its chest until there is a broad political agreement.”

 

The politicization of war-era cases in the past decade has also complicated the TJ process. Initially, the cases were used by the parliamentary parties against the Maoists as a bargaining tool. Mainly, the former insur­gents were threatened that war-era cases could be taken to international courts. Not only political parties, some human rights groups and individual activists also created unnecessary uproar about transitional justice. While some advocated blanket amnesty, others talked about international courts, both of which were against the principles of transitional justice. Now, such voices have become faint.

 

Currently the two transitional justice commissions are without leadership. The government on March 25 formed a five-member committee led by former Chief Justice Om Prakash Mishra to select two chairpersons and members. The govern­ment claims to be working to amend the transitional justice laws in line with the SC verdict, but there is no public discussion on it. Together, the two transitional justice commissions have received around 66,000 war-era complaints but preliminary inves­tigation has been conducted on very few of them.