No Law, No Justice, No government for conflict victims

Nepal’s transitional justice process has been a long and frustrating saga, seemingly without a foreseeable conclusion. As the two key commissions tasked with investigating war-era human rights abuses—Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons—languish without leadership, victims and international observers alike are grappling with uncertainty.

Rishi Poudel,  the TRC undersecretary, says the commission’s works are at a complete standstill in the absence of its chair and other members. 

The TRC has registered 64,000 complaints from the conflict victims, and has so far managed to muster preliminary investigations for around 4,000 cases. Around 3,000 cases have been left in abeyance due to a lack of concrete evidence. 

Similarly, the CIEDP, tasked with addressing enforced disappearances, has received a total of 3,288 complaints. Out of these, 277 were transferred to the TRC, 292 were put on hold, 136 complaints were found to be duplicative, and 48 cases were resolved. Presently, the commission grapples with 258 active complaints.

Suman Adhikari, a conflict victim, laments that the TRC has slipped down the priority list of the coalition government, instead it is being used as a bargaining chip by political parties. “We are expecting a public statement from top three leaders of major parties Nepali Congress, CPN-UML and CPN (Maoist Center) expressing their commitment to TRC and apology for the delay,” he says.

Beyond the immediate vacuum in leadership, a newly tabled bill has thrust the situation into the spotlight. The bill, introduced on March 9 this year, seeks to amend the Enforced Disappearance Inquiry and Truth and Reconciliation Commission Act of 2014. But it is a contentious move, one that has roused skepticism from both victims and the global community alike. Critics are quick to point out the bill's potential shortcomings, raising questions about its capacity to comprehensively address the multifaceted challenges at hand. 

The amendment’s hurried unveiling followed Prime Minister Pushpa Kamal Dahal’s startling statement, where he took ownership of the deaths of 5,000 individuals during the insurgency.

While registering the bill in the House of Representatives, Minister for Information and Communications Rekha Sharma had said, “The transitional justice Act needs to be amended to address a range of human rights violations, and to prosecute those individuals implicated in serious crimes.”

But victims of conflicts and the international community are not convinced. They say if enacted, the law would prevent the investigation of crimes including rape, murder, torture, war crimes and crime against humanity that were committed during the conflict.

Despite glimmers of optimism, such as provisions examining the conflict's root causes and securing reparations for victims, the United Nations experts have voiced concerns that the amendments, if adopted, could inadvertently provide sanctuary for perpetrators of grave crimes committed between 1996 and 2006. This criticism not only spotlights a potential breach of international obligations but also underscores a discord with Nepal's own Supreme Court rulings.

The plight of conflict victims is both a somber reminder of the past and a call for urgent action. The government's recent extension of the commissions' tenure until mid-January 2024 serves as a temporary reprieve, but victims remain undeterred in their pursuit of justice. 

In their ‘Kathmandu Declaration’, the victims have accused the government and major political parties of disregarding the commitments outlined in the Comprehensive Peace Agreement signed on 21 Nov 2006. 

“Had the government and political parties been serious, we wouldn’t have to wait for so long to get justice,” say the victims. “It’s been eight years since the formation of the two transitional justice bodies, but they remain largely inert and without key office bearers.” 

The conflict victims have also accused the government and political parties of registering the amendment bill by bypassing the parliamentary sub-committee that was tasked with the responsibility of preparing the amendment proposal. 

Criticizing the removal of the definition of forced disappearance from the bill, the victims have urged the government to include the definition, which is in the existing Act. They say many families don't even know the status of their missing loved ones, whether they are dead or alive. 

Likewise, they have sought provisions for compensating victims of torture, sexual violence and conflict-related atrocities, as well as return of the seized properties. The conflict victims have also called for changes in the proposed appointment procedure for officials in the transitional justice commissions. 

“Since past experiences have proved that the existing procedure is faulty, the government should make sure that the committee formed to recommend officials in the commissions should be credible, independent and fair,” they say. 

Furthermore, the conflict victims have demanded retroactive application of legislation to ensure that the perpetrators of serious crimes committed in the past are brought to justice. They have also suggested formation of a special court to handle transitional justice cases through the process similar to the establishment of a high court, rather than forming a three-member Special Court on the recommendation of the judicial council. 

The victims have also demanded for immediate implementation of the second national action plan for UN Security Council Resolutions No 1325 and 1820, which pertain to women, peace, and security. 

They have denounced the controversial amendment proposal to the Criminal Procedure Code, 2074 as well. The proposal, recently tabled  in the Parliament, allows for the withdrawal of ongoing criminal cases involving serious human rights violations. 

As Nepal grapples with its past, navigating the arduous terrain of transitional justice, the nation's commitment to lasting accountability is poised for examination.

The fate of the TRC and the CIEDP, intertwined with political dynamics and international responsibilities, represents the crucible in which Nepal's dedication to justice is being forged. The agony of victims, spanning realms from economic deprivation to emotional distress, underscores the gravity of the challenge—a challenge that can only be overcome with political will and steadfastness.