Kathmandu: The conflict victims and the international community are getting antsy. They have been frustrated with the delay in the appointment of chairmen and members of the two transitional justice mechanisms, and with the federal government’s failure to amend a related Act in line with Supreme Court verdict.

This has put the government in a bind. The international community is putting pressure on the government to amend the Act as per the 2015 apex court verdict, in adherence with international standards, and on the basis of wider consultations with conflict victims and other domestic stakeholders.

The 2015 SC verdict had pointed to the failure of the ‘Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act-2014’ to comply with principles of transitional justice and international practices. The thrust of its argument is that there should be no amnesty in cases of serious human rights violations committed by both the security forces as well as the Maoist party. Former Maoist leaders, however, see this verdict as a breach of the 2006 Comprehensive Peace Agreement, the guiding document of the peace process.

It has been over four years since the court order and successive governments have failed to amend the Act. The Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) have done little in past four years save for collecting nearly 66,000 complaints from conflict victims. The commissions were paralyzed due to lack of clarity in their mandate, insufficient resources and overbearing political pressure.

The tenure of chairs and members of the two commissions expired on March 15 and they have since been without leadership, giving rise to a fear that the complaints filed by conflict victims could be lost or manipulated. In the first week of March, the government had formed a new leadership recommendation panel under former chief justice Om Prakash Mishra.

“The indecision on recommending chairs and members is indicative of the pressure the two commissions have faced in the past four years,” says former TRC member Manchala Jha. “There is a psychology that if those close to party leaders are appointed, the leaders will be protected from war-era cases. It is a national issue and parties should rise above petty interest if they want it sorted,” she says, adding that she suspected the hand of ‘unseen forces’ in delaying the process and in giving continuity to a sort of instability in Nepal.

Deliberate delay

The recommendation committee has been unable to decide due to lack of political consensus. Both the ruling Nepal Communist Party as well as the opposition Nepali Congress are claiming TRC leadership. But even more serious is the delay in amendment of the related Act, as the government seems unable to accommodate the conflicting concerns of the former Maoist leaders, the security forces, and the international community.

According to sources, the UN and representatives of various embassies in Kathmandu discussed the delay in appointments and Act amendment a couple of weeks ago. The meeting concluded that both ruling and opposition parties were deliberately delaying the transitional justice process.

As in the past, the international community was all set to issue another statement calling on the government to settle the process soon. The government said it was ready to address their concerns but that there should be no public statement. Thus prompted, the international community has since adopted a policy of reminding government representatives of their transitional justice obligations behind closed doors.

In a meeting earlier this month with Markus Potzel, the Commissioner for South Asia in the German Federal Foreign Office, Law Minister Bhanu Bhakta Dhakal had reiterated the government’s commitment to make the kind of amendments the international community wanted. The meeting highlighted Germany’s deep concern with the TRC process, and also the European Union’s fears over the protracted peace process.  

Foreign ambassadors based in Kathmandu are also repeatedly meeting Foreign Minister Pradeep Gyawali to express their concerns.

Consult us too

Then there are the conflict victims. Earlier this month, the Conflict Victim’s Common Platform submitted a memorandum to Minister Dhakal asking for a broader roadmap with a clear deadline for completion of the transitional justice process. The forum asked the government to consult all stakeholders in the peace process and to immediately halt the work of the recommendation committee.

“The process of amending the Act must begin instantly after meaningful consultation with the stakeholders including conflict victims, based on the spirit of the Constitution of Nepal, the Comprehensive Peace Agreement, the Supreme Court ruling, and human rights conventions and declarations Nepal government is a part of,” the body said.

As the previous office-bearers of the two transitional justice bodies failed to live up to the expectation, there are concerns that new appointments would meet with the same fate. Conflict victims and international community thus argue that the two commissions should be independent and autonomous, with fixed jurisdictions and adequate authority. “The incapability of the office-bearers, who were picked on a political basis… by sidelining the principle of conflict transformation, peace building and transitional justice contributed to our distrust,” the conflict victim platform said in a statement.

At the same time, former child soldiers who were discharged in 2010 by then Madhav Kumar Nepal government are piling on the pressure to address their demands. They say even though they were used as soldiers during the Maoist conflict, they were not accommodated in the peace process. The informal leader of former child soldiers Lenin Bista has started highlighting their plight at various international forums. In a recent interview with APEX, Bista warned that the ‘disqualified’ former Maoist fighters could at any time lodge a case against senior Maoist leaders at the International Criminal Court in The Hague.

The TRC is also a major bone of contention between Prime Minister KP Sharma Oli and his fellow ruling NCP co-chair Pushpa Kamal Dahal. Oli is reportedly reluctant to once and for all settle transitional justice cases as the incomplete peace process could be used as a tool of leverage against Dahal in all future power-sharing negotiations. Dahal, meanwhile, is pitching for near blanket amnesty in all war-era cases, and the settlement of the peace process at the earliest.

Former Maoist leaders also do not want to amend the laws in line with SC verdict, and yet in that case they also fear being arrested abroad on charges of grave rights violations. They also want all cases lodged with the regular courts against various Maoist leaders handed over to the two transitional justice bodies.