Ensure Victims’ Justice
The Comprehensive Peace Agreement signed between the parties of armed conflict has provided for forming Transitional Justice (TJ) mechanism. The provision, however, has not been materialized yet. Bills on the truth and reconciliation commission and commission on disappearances were presented in the erstwhile parliament. As the parliament was dissolved along with the expiration of the Constituent Assembly (CA), the Bills could not be passed. Immediately following the dissolution of the CA, the Baburam Bhattarai-led government has brought an ordinance on the TJ mechanism. In this context, this article will discuss the Ordinance from human rights and victims’ perspectives.
2. Indispensability to Probe into the Past Human Rights Violations
The incidents of grave human rights violations committed in the past, if not addressed prudently, are likely to result in serious repercussions. Due to the inability to pay due attention or due to total disregard towards so many human rights and armed conflict related issues, Nepal’s human rights situation had been a matter of worry even to the international community during armed conflict.
If International Humanitarian Law (IHL), International Human Rights Law (IHRL), the ICRC rules of customary international humanitarian law, common article 3 of the Geneva Conventions, the principle of distinction, indiscriminate attacks, the proportionality and precaution in attack, principle of humanity, double jeopardy and the attack directed against any civilian population were taken into consideration by the warring sides violations and violence could be minimized at that time. Also, the trajectory of Nepal’s armed conflict probably would not be so grim. The parties of the armed conflict in Nepal disregarded these grave issues as a result of which an unprecedented violence and violations occurred, which still call for the formation of related commissions for unearthing truth about the incidents of rights violations committed in the course of armed conflict.
Therefore, it is indispensable to dig up country’s bloody and repressive past despite the fact that it might be risky, with the view of present necessity of travelling along the road of reconciliation, and painful at the same time in terms of remembrance of the traumatic past.
3. Condemnable Ordinance
Although through an ordinance, the government of Nepal has taken a step for the establishment of transitional justice mechanism. Due to the flaws contained in it the Ordinance has been criticized nationally and internationally. Truth and Reconciliation Commission (TRC) is and has been established worldwide for assessing the human rights violations and abuses committed in the past and also for identifying the causes of such incidents. However, the Ordinance put forth by the government does not contain meaningful provisions to delve into these aspects. It is also due to this fact that conflict victims and other concerned organizations have been affirming that government’s move to form the transitional justice mechanism is unfair and illegitimate. Also, they have been requesting the government to retreat from its ill-intention to form the TRC through illegitimate foundation. As, principally, the commissions formed on enforced disappearances and, truth and reconciliation do not themselves execute their findings and recommendations, INSEC has been expressing its concerns emphatically that such the commissions should provide for concrete guidelines for the implementation of the recommendations that are made by them. Given that non-implementation or under-implementation of the court verdicts, including those from the Supreme Court, and also the recommendations made by various commissions formed for different purposes in the past are not encouraging for us to be optimistic as regards their implementation, such guideline is required. The Ordinance has the provision that required regulations can be formed for implementing the objectives of this commission. However, given the gravity of the issues the Ordinance has to deal with, the vague statement included in the Ordinance does not assure us of the implementation of the recommendations of the commission formed through this Ordinance.
Human rights community in Nepal has been expressing strong position against this Ordinance. Their position will remain unchanged until and unless the process to form the TJ mechanism is determined by consulting with the concerned stakeholders. We are well aware of the fact that the international principle and standard of the TRC requires that human rights community and the advice, agreement and involvement of their representatives have to be taken into consideration. However, these stakeholders have been totally disregarded in the course of preparing and issuing this Ordinance. This reality has made us circumspective.
The initiative of the government on the formation of the commissions is likely to be just a ritualistic one, not having anything to do with conflict victims’ justice. We have been highly cautious towards this possibility. As these provisions might be (ab)used so as to apply politico-administrative discretion in the matter of granting amnesty, the amnesty provision laid down in the ordinance has made us anxious in the meantime. Having said this, it is not to construe that transitional justice mechanism does not apply amnesty at all. Rather, our concern in this connection is directly related with the possibility that conflict victims might remain displeased even after the exhaustion of the full process of transitional mechanism, thereby setting stage for the repetition of violence and revenge. On this account, it is desirable to have the provisions of amnesty accompanied by notional and definitional clarity of human rights violations or their levels. Also, this ordinance does not seem to have paid attention towards the possible consequences that appear due to undue application of such provisions.
The current Ordinance seems to have attempted to define serious human rights violations and has tried to be specific as to the qualification and disqualification for the Chair or members of the Commission, besides providing recommendation implementation arrangement. Since the government, through the discretion of the Attorney General, has been made the decision maker on whether or not to prosecute the person recommended by the commission, section 28 of the Ordinance is likely to make the commission formed through this ordinance quite discretionary.
4. INSEC’s Engagement in the Past on Reforming the TJ Related Bills
INSEC had provided a number of comments with the view to reform the draft Bills on the Truth and Reconciliation Commission presented in the erstwhile parliament. At that time too, it had demanded for a clear definition of “gross violation” of human rights and incorporation of the phrase “war crime” in the Bill. As the draft Bill was seen to have been brought by ignoring the issue of justice, we had recommended to add some phrases so as to ensure that the bill was for addressing the violations committed in the past as well as to prevent violations in future. The Bill had laid emphasis on compensation, seemingly taking it as the sole measure of providing reparation to the conflict victims. Therefore, INSEC had suggested incorporating arrangements in order to guarantee truth, justice, compensation, rehabilitation, satisfaction and guarantee of non-repetition recalling that these are the mainstays in regards to justly dealing the victims whose human rights have been violated. INSEC still does have unflinching belief relating to these aspects, which generally human rights defenders cannot disregard.
INSEC had put forth its view regarding the qualification for the Chairperson or members of the commission too. Its concern on this issue was primarily related with the worry that the commission as such should not be politically and unduly influenced. We had intended to exclude the persons incriminated by commissions including by the Mallik and Rayamajhi Commissions. Also, suggestions were provided to exclude the persons who are pointed the finger by the findings of responsible organizations accusing them of being human rights violators.
The decision to form commission on disappeared person and on the TRC through an undemocratically brought Ordinance is against the Comprehensive Peace Accord, the Interim Constitution of Nepal 2007, various agreements reached in the past, the bills tabled in the erstwhile parliament and the responsibility of the government on human rights and victims’ right to justice. Until and unless civil society is allowed to involve in finalizing the contents of the Commission meaningfully and their comments and grievances relating to the formation of the commission are incorporated, the Ordinance will be unacceptable.
Bringing the Ordinance that does not deal with conflict victims’ concerns and accommodate provisions accordingly will turn out to be a politically crafty move rather than a serious step towards socio-psychological process of conflict transformation. Therefore, the commission formed through this Ordinance is highly likely to keep the possibility intact for the conflicting parties to relapse into violence. Given that political dishonesty is ruling over us, such a move has to be judged cynically, if not as an attempt to grant amnesty to the perpetrators of armed conflict. Although material welfare is one of the means of providing justice to the conflict victims, more importance has to be given as to how the conflict victims’ and their independents’ lives have been affected due to what they lost and to infliction of pain. The gruesome effects of the human rights violation committed during conflict-era cannot be faded into oblivion. It is, therefore, the duty of the organizations committed to human rights to stick to the cause until and unless the conflict victims are justly dealt. INSEC, as a committed human rights organization in the country, commits to keep on working for the conflict victims until they feel to have been given justice.
 1. These aspects have been especially focused by the Nepal Conflict Report published by the UNOHCHR. Details can be accessed from http://nepalconflictreport.ohchr.org/html/2010-12-00_legal-framework_applicable-law.html
 2. Visit http://www.insec.org.np/files/documents/Comments_on_TRC_Bill.pdf for the comments and suggestions provided by INSEC on draft bill made for making provisions relating to truth and reconciliation commission.
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