Nepal’s Transitional Justice: Crisis of Political Will

Bijaya Raj Gautam

Executive Director, INSEC

Nepal’s 10-year long armed conflict came to an end following the signing of Comprehensive Peace Accord (CPA) on November 21, 2006. The main goal of the CPA was to end the insurgency and ensure the management of Maoist combatants and their weapons, promulgation of the Constitution through election of the Constituent Assembly and to address the concerns of the victims of human rights violation during the armed conflict. However, the concerns of transitional justice remain where they were 13 years ago raising questions about social justice. Thereafter, the political parties could have used the opportunity to address the violations of human rights during the conflict and ensure truth, justice and reparation to victims. However, the political leaders have largely avoided their responsibility. As a consequence, Nepal has missed the opportunity to portray its peace process as a model for the world.  Thirteen years after the completion of the Peace Accord, the victims of conflict remain deprived of both justice and reparation.

Work that should have been done towards psychosocial rehabilitation of the families of those killed, disappeared, displaced, sexually violated, and to return seized property to lawful owners were matters directly related to justice remained undone. This is against the Comprehensive Peace Accord.

Impunity remains deep rooted even after 13 years of the signing of the CPA. State has continued to create obstacles for resolving cases against those accused of conflict-era violations at different courts. Nanda Prasad Adhikari, father of Krishna Prasad Adhikari who was killed in Chitwan, died in his efforts to bring the murderers of his son to justice. The government failed to bring the accused to the judicial process. The pardon of Balkrishna Dhungel facing life in prison for the murder of Ujwan and Arjun Shrestha of Okhaldhunga is one example. Similarly, the government did not make effort towards bringing the accused of Badarmude murders, and murders of Arjun Lama and Muktinath Adhikari to justice. It was not possible to get information on the whereabouts of 48 people who disappreared from the Bhairabnath Battalion, while the accused have been promoted. Even members of security services with cases against them in court were promoted. There have been not steps to take action against those responsible for well-known cases of killings at Doramba, of Maina Sunar, Kotbada, and other cases. INSEC has continuously reminded authorities about these cases through its publications.

The inability to make progress in terms of justice and reparation threatens to overshadow the achievements of the peace process. It will be difficult to permanently resolve these issues until the government and its agencies prioritize justice and reparation.  Investigation of violations of human rights and excesses, resolution to not allow such incidents to repeat, bringing perpetrator of human rights violations under the judicial process, ensuring justice and reparation to victims, etc. are some of the goals of transitional justice. However, no real efforts have been made towards this end casting doubts about whether the peace process will ever be concluded.

 Documentation of Conflict Victims

INSEC has records of 13,248 deaths and 932 people who went missing during the 10-year conflict (13 February 1996 – 21 November 2006). There are many reasons that attest to the validity of this data, including documentation done in the areas where the people lived. However, even after 13 years there are no official records of human loss during the conflict. There has been no effort to establish how many people were killed, where and why they had to die. Even, the Maoist party did not make public records of their dead. Government has said it should to make its data accurate on the deaths through further validation. The inability of the local administration to maintain this data has created difficulties for providing justice to the victims. Further, data on those injured, displaced, whose property was seized and other damages caused during the conflict have not been made public. The 62,000 complaints that have been registered at the Truth and Reconciliation Commission and more than 2,700 at the Commission of Investigation on Enforced Disappeared Persons suggest the situation is different compared to what we knew. The Comprehensive Peace Acord (Section 5.2.3) says, the name and address of people forcefully disappeared and killed during the conflict shall be published within 60 days and that family members shall be informed. This provision seems to have faded from the memory of stakeholders. Similarly, section 5.2.5 committed to finding truth on extreme Human Rights violations and those responsible and creating an environment for reconciliation by forming commission on truth and reconciliation and disappearances. However, it took nine years the commissions were formed and the work still remains incomplete.

Dilemma in Transitional Justice

The Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons had raised hopes that those responsible for violating human rights and humanitarian laws would be brought to justice and that there would be reparations for the victims. Cases of violation of humanitarian law by both the state and Maoists forces have already been published. International humanitarian law has categorized armed conflict based as international armed conflict and domestic armed conflict and has separate laws that apply to these situations. The main concern of international humanitarian law is to safeguard ordinary citizens not involved in conflict. All four Geneva Conventions 1948 (Article 3) have responsibilities of parties in conflict and this provision also applies to non-state parties. The provision prohibits murder, enforced disappearances, beating, physical damage and torture of unarmed civilians. Nepal is a state party to all four Geneva Conventions, and the Maoists had as early as 2003 committed to abide by international humanitarian law.

A majority of those killed in the conflict are civilians or people with no interest in the conflict. The killing of workers building an airport at Kotbada of Kalikot by the army, the killing of Maoists at a meeting after taking them under control in Doramba during the ceasefire by and army and the killing of Dekendra Thapa, journalist, in Dailekh; Yadu Gautam, a UML leader in Rukum, Muktinath Adhikari, and Guru Prasad Luitel both teachers are some representative acts of violating the human rights. The responsibility of the state to investigate such cases and bring those responsible to justice has not been fulfilled. There are only a few examples of investigation of excesses committed by the army and police. A few cases against Maoist murder suspects were taken to Court but were withdrawn by successive governments formed after the Peace Accord signifying the government has no intention of fulfilling its responsibility. As per international humanitarian law, it is the responsibility of the state to investigate such cases and bring those responsible to justice.

The demand and the main task of the transitional justice mechanism is to investigate such case and bring those responsible to justice. However, the government has largely remained unconcerned about this responsibility. Instead, all political parties have immunity for those responsible fearing that justice would unsettle the peace process. Relief and compensation along will not bring peace to families of victims as it is their right to know why their families were killed, or why they were disappeared or hurt.

In summary, there have been no answers to these types of questions that have been around for the last 13 years. As result there still are no signs that provide hope that Nepali society has finally ensure to sustain peace.

People not involved in conflict but suffered are now forced live with disability and without any support. There have been only a few efforts aimed at easing their problems. Similarly, the commitment to find the whereabouts of those disappeared and/or abducted during the conflict remains unfulfilled. This has caused many to suspect intentions of the government to push the conflict-era crimes into oblivion. Even though the delays in transitional justice might have resulted in short-term reprieve for those accused, there also are fears that this could result in desire of revenge that could result in more violence. Impunity and negligence of the stakeholders will invite the international institution into this process which could also have negative impacts on the country as a whole.

 Commissions on TRC and Disappearance: Only Collected Complaints  

The government formed Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons nine years after the Peace Accord was signed. However, the two Commissions have not gone beyond collecting complaints. The government extended the terms of the commissions and eventually dissolved them for their failure to produce results. A number of reasons were responsible for their non-performance: internal conflicts among officials, interests of political parties, lack of adequate skills and resources, and inadequacy of the law itself. The officials of the commissions said that lack of support from government to amend laws and give them the necessary authorities, and to provide them adequate human resources prevented them from fulfilling their responsibilities.

 Fresh Appointments to the Commissions

The government formed a committee coordinated by former Chief Justice Om Prakash Mishra to recommend names for positions in the commissions in March 2019. The Committee sought applications for the positions after preparing directives which was opposed by conflict victims, human rights activists and the international community who said it was unlikely that the victims would be granted justice until some pardon-oriented clauses in the laws were amended.  Amidst pressure from stakeholders, the government reconstituted the commissions and extended their term by a year. But this was done disregarding Supreme Court orders and recommendations UN Human Rights Commission, victims and Human Rights organizations and failed to raise hope that justice would be provided. Also disregarded was the demand that the commissions also represent the victims/ their representatives. Both the government and political parties have failed to take transitional justice with the seriousness it demands which is against the Peace Accord, democratic values and social justice.

One party in conflict is now a strong part in the government.  This has raised doubts about the desire of the government to bring those responsible for grave human rights violations to justice among the victims, UN and international agencies and Human Rights activists. However, the government took less effective measures to appease these concerns in 2019.

There were no assurances that the newly formed commissions would be able to investigate the complaints and act of them from the government. This has led to accusations that it is not the priority of government to resolve the outstanding issues and ensure justice and peace to victims. Continued neglect of different court orders and delays in internalizing international experience in finding truth and justice could make transitional justice a major challenge in Nepal.

Transitional justice has been undermined by the government that seems to have taken the economic support provided to victims to mean justice and reparation. Government does not seem to have taken punishing those responsible for grave Human Rights violations and the need to support livelihoods of victims seriously.

Both parties in the conflict seem to have disregarded the main objective of transitional justice which is establishing sustainable peace. One reason for this is the ascendance to power by one of the parties in conflict. Hopes of the victims to get justice seem to have been doused as both the Nepal Army and the former Maoists – that were responsible are now the part of state. The leader of the Maoists Puspa Kamal Dahal has publicly stated about his involvement in killing of 5,000 people and accused state forces of killing the remaining 12000. There are speculations that the large political parties are not keen to take up this issue because it could implicate former security officials as well as those in the government during different periods of the insurgency.

The Supreme Court has given clear directions through various verdicts and orders on Nepal’s transitional justice. Among these, the order of the Supreme Court on 2 January 2014 is considered important. It was a response to a writ by conflict victims and legal professionals who had claimed that the provisions in ordinances on the commissions violated Articles 12(1), 13(1) and 24(9) of the Interim Constitution 2006. The order had the following:

— A separate commission should be formed to investigate enforced disappearances

— The ordinances should be amended to include the provision that the accused can be pardoned only with consent of the victims

— Law should be enacted to make genocide, crimes against humanity, war crimes, enforced disappearances, torture, and extrajudicial killings

— The 35-day timeline for filing cases in cases of serious Human Rights violations should be reviewed.

— Legal provisions should be made providing realistic economic, legal and institutional arrangements for the victims and their families with reparation for promoting and environment for reconciliation, among others.

Lessons to be Learned

There are many international examples of transitional justice in other countries and how the processes were operationalized for providing justice and reparations to victims. These Commissions have ordered sanctions for serious crimes and also reconciled many cases. These could also have lessons for Nepal. Disregard for such lessons threaten to delay transitional justice and also polarize the political environment. This could also affect Nepal’s ability to fulfill international commitments and could require the accused to face investigations by international agencies in the cases. It has now become necessary to address transitional justice not only on the basis of political agreement but also in agreement with victims and national and international stakeholders.

 Way Forward

Transitional justice as addressing serious Human Rights crimes through legal processes. This requires acceptance of mistakes made in the past, prosecution of accused through appropriate processes, respectable compensation and reparation for victims, and pardon in some cases with agreement of the victim.

People forcefully caused to disappear, those who have lost limbs, and victims of sexual abuse and torture have not yet been included in the mainstream of the peace process.  Political pronouncements alone are not enough for establishing lasting peace. Those responsible for crimes need to admit to their mistakes, critique their acts, ensure trust in justice among the victims, their self-respect and pardon are also important part of the process for the victims to own the process.

Transitional justice cannot be resolved through the established normal criminal justice system. This can be done where the conventional system has evolved into a modern and practical process. This restorative legal mechanism can be understood as transitional justice system which addresses crimes as crimes against society and the nation. Similarly, it provides justice with political understanding and with the advice of subject-matter experts in planned ways. Trying to address these issues as matters of the police, courts, judges and legal professionals might not lead to lasting solutions and reparations for victims. This is why the concept of restorative justice has to be adopted for transitional justice.

 Pathways of the commissions

The commissions with a term of a year have many responsibilities These mechanisms need to keep the victims in the center while fulfilling their responsibilities. The commissions must make efforts to understand the views of the victims on matters being discussed at higher levels. The victims want guarantees of justice and assurance that such crimes are not repeated in the future, which is something these commissions to be informed about.

In many countries there is the practice of establishing museums, parks, roads, etc. for commemorating the conflict victims. The commission need to take discussions about these ideas to the victims. A Special Court for transitional justice can be set up in political consensus. Such a court would need to be provided authority to punish those guilty, determine the type of sanction, and duration of the punishment. There can be no pardons for crimes involving in serious human rights violation and breaching the humanitarian laws. This can be resolved only with the consent of the victims by the legal mechanism. It is important to ensure that the establishment of a Special Court for transitional justice is delayed. Transitional Justice is delayed in Nepal because the political leaders and parties have diverted their priorities and neglected to the justice and reparation concerns.

Source : Nepal Human Rights Year Book 2020