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Wednesday , 19th December 2018

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Shobhakar Budhathoki

TRANSITIONAL JUSTICE IN POST-CONFLICT SOCIETIES AND NEPAL’S EFFORTS

Background
Transitional Justice (TJ) is primarily known as the process of addressing serious crimes and grave human rights violations occurred during the conflict or controlled regime through prompt mechanisms established within the principles of due process and justice. It normally encompasses confession of past weaknesses or mistakes, prosecution of perpetrators based on proper process, appropriate and acceptable compensation and reparation to the victims and amnesty process as necessary with the consent of victim without undermining their dignity. Therefore, the jurisdiction of TJ process could be incorporated as part of promoting reconciliation, reparation and justice that aims to build a just society and lasting peace in post-conflict societies by ensuring compensation and justice.

The activities relating to TJ are normally carried out by the countries that are going through the process of transformation from violent conflict or dictatorship towards a peaceful one aiming to establish a just peace and responsible governance. If the issues of serious crimes and grave human rights violation related to the TJ are not addressed properly within the stipulated timeframe, there is a risk of escalation of conflict and instability in the society. The TJ process is established based on the situation of specific country or society with consideration to level of past abuses and crimes. It means the TJ mechanism cannot just be replicated from any other country or situation. However, the process adopted by some countries to address the issues of post-conflict justice of similar nature can be beneficial to Nepal for the effective establishment and implementation of the strategy for TJ.

If the TJ mechanisms could be integrated with the nation building strategies, the process of ensuring justice to the victims can be effective. The structure of such mechanisms relating to TJ depends on the situation of specific country and nature of its past abuses. Also, such mechanisms should be competent enough to bring the perpetrators under the scrutiny of justice and ensure justice to the victim, and provides recommendation for compensation, as well as identify the issues of serious human rights violations, crime against humanity, nature of violation, targeted groups and investigating the reason of abuse and crime.

There is no such an absolute mechanism or template to establish TJ mechanisms. Various alternative processes can be initiated to address TJ issues depending upon the country’s specific situation. It could be introduced based on the nature of conflict, state’s political situation and favorability as it has been taken as a means of providing justice to the victim, punishing the accused and compensating the victim. The worldwide practice of TJ mechanism includes prosecution, formation of Truth and Reconciliation Commission (TRC), vetting, compensation and reparation. In Nepal, the concept of TRC and the inquiry of disappeared persons have been put forward. In the context of Nepal, it is principally and practically quite challenging to ensure compensation and reparation to a victim besides justice and prosecution of the perpetrators with the view of justice and reconciliation within the limitations of the Comprehensive Peace Agreement (CPA).

Expediency of Establishment of Commission in Nepal
The formation of the TRC for the purpose of finding out and documenting the violations of human rights and humanitarian laws and serious crimes, and making recommendation to competent agencies or government for criminal prosecution against the alleged perpetrators; reparation to the victims with the assurance of justice; and provide suggestions for institutional reform to stop repetition of such incidents in the future. These commissions are usually formed to ensure justice to the victims of conflict and initiate prosecution against the perpetrators of violation of human rights or humanitarian laws during the dictatorship or autocratic regime as the existing state’s legal and justice mechanisms are overwhelmed with regular business or the process in these mechanisms are overstretched and at times, the existing judicial mechanisms are unable to deliver prompt and impartial justice.

The CPA and Interim Constitution have envisioned formation of the TRC in Nepal with the aim of prompt justice to the victims of conflict and ensure reparation to them, and bringing the perpetrators into judicial process through establishing TJ mechanisms. During the decade-long armed conflict in Nepal, almost 15,000 people have lost their lives and more than 1,200 people are still missing, according to National Human Rights Commission and other credible human rights institutions. Hundreds of people are left physically disabled and thousands of people were displaced. Moreover, thousands of people were directly or indirectly affected by the conflict and victimized.

The TRC and Commission for Investigation of the Disappeared Persons (COIDP) to address the issues related to TJ seems in a little progress of being institutionalize despite many hitches and the legislation has been recently adopted by the Legislative-Parliament, and the Recommendation Committee for these commissions are announced. Although the Investigation of Disappeared Persons and Truth and Reconciliation Commission (IDPTRC) Act is seen as relatively progressive expect amnesty provision. In the meantime, the human rights communities, victims and international communities suspect that the commission could be inclined towards granting amnesty while the government and political parties claim that the Act respects enough international human rights standards and feelings of victims. The Commission which has been viewed with suspicion before its inception indicates that it will affect the whole TJ process, and eventually undermine the principles of justice.

In other countries, the TRC have been formed to address and resolve the issues of human rights violation especially in post-conflict situation or after the end of dictatorship or autocratic regime. The TRC formed in most of the countries are based on their national requirements and peculiarities, and different names however their mandate and long-term objective are normally similar. The similarities found in those mandate are the study and investigation of grave human rights violation occurred during the armed conflict; investigation and study of grievous crime and human rights violation occurred during the dictatorship or autocratic regime or the investigation of truth during the civil war; search for the disappeared and making their whereabouts public; criminal investigation of arbitrary arrest or extra-judicial killings or mass killings, torture, killing of unarmed people and finding the wrongs of human rights perpetrators and recommending the state for the prosecution while ensuring justice to the victims.

Similarly, it includes searching the locations of displaced people, and create a peaceful, harmonious, tolerant, and justice in the society following the investigation and study regarding the incidents of violation of human rights and humanitarian laws, and aims to create an environment so that everyone can live a dignified life in a society. It also includes the recommendation of reparation to the victims and institutional reform.

In this sense, it is the state’s responsibility to provide a relief and proper justice to the victims of conflict. At the same time it is the responsibility of political actors who have been the signatories of the CPA to materialize their commitments in practice. TJ mechanisms cannot be established or cannot be made effective in the absence of collective commitment and political willingness, and there is little chance of victims getting a sense of justice without collective efforts.

Foundations of Establishing TJ
It is the responsibility of state to prepare the TJ strategies, effectively and judiciously to address the incidents of human rights violations, abuses and serious crimes occurred during a decade-long Maoist insurgency. The TJ process becomes a very much complicated especially in post-conflict countries. Country which is going through in transition from violence to peace after the conflict or arbitrary regime has a high probability of getting obstructions from those parties directly involved in a conflict. Primarily, if a situation arises where of the state and non-state political and military actors need to be held responsible, these actors may attempt to seek immunity by bringing the process in jeopardy which is against the basic norms of TJ process.

The traumas of the violent conflict are very poignant and painful, and it is impossible to heal through compensation. The victim’s concern must be addressed so as to stop re-emergence of conflict in the society and to stop the possible transformation of victim’s feelings of pain to revenge. There can be disagreement among the victims while adopting the technique or methods of addressing this issue. Therefore, the state must adopt proper techniques and carry out reasonable processes of TJ that is generally acceptable to all or at least acceptable to majority. Considering such situation, a consensus to establish TJ mechanisms and to bring the perpetrators into a judicial process with victim’s content was reached between the political parties and Nepal Government through the CPAin November 2006. The failure of the state to implement the agreements has disappointed the victims and other concerned stakeholders despite their early excitement and optimism.

The incidents of grave human rights violation and serious crimes during the armed conflict by both the state and Maoists have been documented by NHRC and other human rights organizations. It is the state’s responsibility to bring the accused of human rights violations into the legal action with justifiable approach by addressing the concerns of conflict victims and their issues. Unfortunately, the government’s inability to address the victims’ trauma and concerns have compelled to them to live with additional pain whereas the perpetrators are continuously acquitted. Neither the victims nor the perpetrators are fault for such situation. Rather the signatories- state (erstwhile the Seven-Party-Alliance of SPA) of CPA and the then Maoists are primarily responsible. In this regard, the victims should be provided compensation and reparation besides deliverance of justice, and legal action or amnesty to the perpetrators under the due process.

Nepal has relentlessly retained the seriousness of establishing TJ mechanisms during the entire peace process. Similarly, both sides have continuously committed to the people for its enforcement. The provisions of TJ have been included in the Article (5)(2)(3), (5)(2)(4) and (5)(2)(5) of the CPA Similarly, the CPA incorporates the disclosure of detailed report of disappeared people within 60 days; formation of National Peace and Reconstruction Commission to provide relief to the conflict victims; to create harmony and reconciliation in the society by investigating truth of those involved in crimes against humanity through the formation of the TRC. Unfortunately, these provisions related to TJ are intentionally ignored by political actors.

Concerns of TJ Management
The management of TJ is a challenge in itself and has been getting complicated due to the short-sighted vision by the major political actors and their leaders, as well as poor performance of the leadership. During the transitional period, the justice process for the conflict victim should be addressed with high priority. As a result of petition filed by the victims against the Ordinance for the formation of the TRC and COIDP in March 2013, the Supreme Court has clearly said that the Commission should respect the victim’s sentiment. It has further faulted the focus on reconciliation instead on justice, not consulting with the victims and stakeholders, immunity to the perpetrators and protection rather than action against them. In response to the writ, SC ruled that the amnesty for the accused of serious human rights violation was not acceptable, the commission’s freedom, fairness and trustworthiness must not be compromised, serious violations must be criminalized, victim and their family must be provided with adequate reparation and reconciliation must be promoted in the society. Unfortunately, most of these Supreme Court’s recommendations are intentionally rejected in the Act.

The TJ mechanisms formed to ensure justice to the victims must be established and implemented from the perspective of justice. Also, the state must be open and flexible in the issue of reparation to the victim. Otherwise, it is impossible to expect peace and harmony in the society if perpetrators centric TJ mechanisms are formed.

Tenure of the Commission
The commission’s tenure in the TRC Act is two years from its establishment. However, the tenure can be extended for up to one year if it cannot complete its job within the stipulated timeframe. In the international level, tenure of such commission varies depending upon the complexity of national polity. For example, the commission formed in Uganda in 1974 was given just six months of tenure whereas the longest tenure was provided in Rwanda in 1999 known as National Unity and Reconciliation Commission. The commission of Rwanda was converted into permanent guild in 2002 however the final report has still not been submitted. In average, the tenure of such commissions is seen being 2 to 3 years.

Commission’s Structure, Number and Procedure
The Act envisions the commission of having at least five members including one woman and one recommended by a three member-committee including NHRC representation chaired by former Chief Justice. While reviewing the formation of Truth and Reconciliation Commissions in over 40 countries, most of the countries including South Africa, have their own citizens as the commissioners. However, countries like Kenya, Syria Leone and Solomon Islands among others have appointed both national and foreign citizens as the commissioners. Similarly, in El Salvador, Burundi and Guatemala, the commissioners were appointed by the United Nations and in Rwanda, all the appointments and other managerial processes were performed internationally while in Argentina the Commission comprised both Members of the Parliament and non-parliamentarians. Similarly in Bolivia, the commission was led by joint-secretary of Home Ministry and in Uganda it was led by a Justice of Supreme Court.

By numbers, Ecuador had the lowest number (four) commissioners appointed while the highest number of officials appointed was in Democratic Republic of Congo (21), Ivory Coast (28) and Germany (36) etc. The choice of number in the commission depends of the nation’s need, its geographical complexities and ethnic diversity. However, in average, there can be seven to nine members in such important commission. Meanwhile, most of the countries have some degree of female representation in the commission. For example, South Africa is considered successful in establishing the mechanism of such commissions that ensured the state’s ethnic diversity and general demography. It had nine male and eight female commissioners out of total 17 with the inclusion of all ethnic representatives. Besides that, the commission realized the sensitivity of human rights violations by including human rights activists and legal practitioners as members of the commission.

Commission’s Mandate and Jurisdiction
In the Act, the commission has been given mandate to investigate the case only if the complaint is lodged at commission by victim or victim’s party and if the commission thinks that it is within their jurisdiction. The provisions and processes set on investigation process, binding obligation to cooperate with the commission, action for its contempt, protection of witness and other people and public hearing to regulate the commission can be commended. Similarly, the commission has been given an authority to have the case pending, reconciling, reporting for action, recommending for amnesty, reparation and also submitting the report encompassing institutional reforms. However, the important part is the vague definition of “Serious Human Rights Violation” which might affect the work of the commission by creating an intense situation.

Normally, two types of TRCs are being established in other countries. Both types of commissions are made responsible to carry out its functions with limited jurisdiction and comprehensive mandate Especially, the commission formed with the aim of identifying the disappeared citizens or identifying the murderers of political prisoners has been found submitting the report with the recommendation of prosecution. The commission with broader jurisdiction has been found investigating the incident of disappearance, displacement besides investigation of other types of conflict victims along with serious human rights violations. Based on findings, these commissions have made recommendations to the government to initiate prosecution and reparation besides compensation to the victim, as well as provided suggestions to make sure that such incidents would not occur in the future. For example, most of the countries including Argentina had limited the commission’s jurisdiction to disappearance whereas the countries like South Africa, Peru and Timor-Leste had broadened their mandate.

Implementation of Report and Monitoring
In the Act, the commissions’ restricted mandate that requires submission of the report and the implementation of its recommendations to the government, and implementation responsibility solely provided of the government and discretion of processing of case by the Attorney General or designated government attorney itself raises the question regarding the fair enforcement of the report. Also the monitoring responsibility about the status of the enforcement has been given to the National Human Rights Commission (NHRC) in which it provides mandate to draw the attention of respective ministry about the implementation and the ministry has been authorized to implement those provisions as soon as possible.

In other countries, almost all countries have submitted their report to the government with the inclusion of recommendations including prosecution, reparation, reconciliation, amnesty and institutional reform. But, the travesty is that the implementation of report is very poor in almost every country and no separate independent agency has been formed for monitoring the implementation of report. Normally, the agency which received the report must take responsibility to implement the report. In result, the implementation situation is not found encouraging in any of the country. Even in South Africa, where the TRC is taken as an exemplary success, the situation of implementation is not satisfactory. There has been some progress regarding reconciliation but not in the areas of prosecution. Similarly, it took years for the victims to receive compensation as reparation recommended by the commission. However, the South African Commission was very much successful for public hearing and dissemination of its activities. In Sierra Leon, the government gave a positive message by initiating the reparation prosecution and institutional reform process based on commission’s recommendations. The parliament had passed the National Human Rights Commission Act and formed a special court for prosecution and a National Commission on Social Work for reparation.

Question Raised by Stakeholders
There are number of concerns raised by the stakeholders that could affect or jeopardize TJ process in Nepal, which could eventually have long-term affect in peace, stability and justice.

Commission’s Structural Problem
A committee of former Chief Justice as chairperson, one NHRC representative and one member from among Human Rights activists, psychologists, legal practitioner, legal experts, conflict experts, sociologists, women activists or those involved in peace process, nominated by the government will recommend the members of the TRC which will include four members from led by former Supreme Court Justice or chief judge of Appellate Court. However, there is a doubt on fairness of the appointment process given the culture of power sharing of main political actors. As the impartiality, expertise and skills are being judged on party line, there is a high possibility that the nominations would be influenced, may be not theoretically then practically. In the Act, there is a provision of five-member commission and it is very tough to form the commission with the assurance of inclusiveness and representativeness. In the initial stage, the commission might face obstruction from small political groups, women and dalits along with regional and ethnic groups to incorporate marginalized and ethnic groups. In this regard, the Act must be flexible regarding the number of the TRC members so as to include people from country’s diversification. The background of the TRC and its communicating medium to the government being Ministry of Peace and Reconciliation will also render it a lower status to other constitutional bodies thus hampering its effectiveness.

Abuse of Reconciliation Concept
The provision of reconciliation where the victim and perpetrator lodge their application for reconciliation and victim is given a proper compensation with apology from the perpetrators to be administered by the commission is definitely going to be abused. On the one hand, this provision could create reconciliation made possible by the perpetrator through intimidation, threat and coercion, and on other hand it could create the situation that compels the victim to choose reconciliation with financial influence. If these issues regarding the reconciliation are not properly addressed, it can further aggravate animosity and victims might be compelled to accept the alternatives of reconciliation. Similarly, if appointed officials are incompetent of imbibing sentiments of the victims, the provision of reconciliation could easily be abused and manipulated for the benefit of perpetrators.

Disadvantage of Amnesty
The commission can recommend to the Government of Nepal for the amnesty to those accused of grave human rights violation provided with adequate justification. However, the perpetrator can easily take advantage of this provision due to the current political practice, party-based consensus system, and the culture of misusing the transitional period. That’s why the Act needs to be clearer on this issue.

Limitation of Time
The tenure of the commission must be specified based on serious human rights violation, its nature and complexities because it is difficult to have an effective investigation in a short period of time and hard to investigate the incident while providing justice to the victim. To commence the work in a stipulated timeframe, the commission needs adequate financial resources and qualified manpower. Therefore, timeframe needs to be reasonable and appropriate.

Problem in Witness Protection
The commission has to rely on the Nepal Police for the security of witness or their family members coming to the commission to record witness account despite the provision stated in the Act regarding the issue of their security. Due to limited resources of Nepal Police, geographical complexities of the nation and illiteracy of society, the commission might not be properly aware of the security problem on time. Victims might never be able to record their statements due to the threat from the perpetrators. The commission is not going to be able to get important information until the civilians feel safe and confident of their access to justice.

Potential Unhealthy Competition and
Non-cooperation between TJ Mechanisms and Other national instruments
In context of Nepal, the national organizations like NHRC has effectively probed many incidents of armed conflict, some of them are still under investigation and has also documented important information of the conflict. In such situation, it is very important that there should be a legal clarity with NHRC while forming Truth and Reconciliation Commission. Similarly, the process of formation of COIDP envisioned by Comprehensive Peace Agreement is also underway and in such situation if there is no clarity of information flow between the commissions, there is a possible failure of other commissions, except TRC. The proposed Act doesn’t clarify the relationship between the commissions which may create an unhealthy competition. There will be a chance of competition despite coordination which may affect the effectiveness of each commission. The victim’s will be deprived of justice. Therefore there must be a provision in a proposed Act creating an environment for the coordination among TRC, COIDP and NHRC. Such provision will reduce the duplication in work and increases effectiveness in the process of justice to the victims.

Lack of Human and Financial Resources
It is the responsibility of the state to provide adequate human and financial resources to the commission and it is certain that the commission will be short of adequate human and financial resources. The Act has made commission free to appoint the staff and sought financial support from the government. However, there is a possibility that the commission might not be able to operate properly due to time limit, complexities in the process of recruitment and time consumed to manage the financial resources. Also, the commission has to manage the mandate and other administrative tools. This might create an awkward situation in acquiring the qualified staffs and taking the donors into confidence to raise fund.

Potential Obstacle in Fair Hearings
Despite the country going through tremendous political change and transformation following the CPA, the perpetrators of serious human rights violation continue to hold positions in political, government and security agencies with impunity due to the lack of vetting, In this context, the hearing process is certain to be affected due to uninterrupted access of the perpetrators to government mechanisms and national politics. The process of hearing is also going to be affected because some of the perpetrators are spending a retired life in the country and a few are even outside the country without accountability.

Possibility of Political
Non-cooperation
There is a possibility of non-cooperation from political parties in this issue as the top leaders responsible for forming TRC continue, are still in the mainstream politics. The TRC process might face difficulties because of possibilities of the attempt to impunity through consensus. As a result, the cooperation from the political parties could be jeopardized. This can be seen as an example of in long delay in final enactment of laws regarding formation of TRC.

Obstacle in Public Release of the Report
In Nepal, there is no practice of publication of the report submitted by previous commissions. There is a high possibility that the TRC report could meet the same fate, and could be dumped the in the government’s office just like the reports of Mallik Commission and Rayamajhi Commission. This situation will violate the people’s right to information and perpetrators will again keep on living a dignified life while the victims will remain continue their demand for justice. Observing the current trend, it is highly likely that the general public will not have access to the report. However, the TRC Act has a provision of submitting the commission’s report to the parliament through government. There has to be a legal provision of easy public access of the report because public access of the report is an indicator of commission’s success.

Uncertainty in Implementation of Commission Report and Problem in Monitoring
The government holds the responsibility of implementing the commission’s report. The responsibility of monitoring has been given to the National Human Rights Commission. In the Act, there is a provision of implementing the recommendations of the commission by the government itself or communicating the recommendations to the Office of the Attorney General or Government of Nepal or Council of Ministers. However, the implementation of the recommendations could be affected until and unless the Office of the Attorney General, which is also a legal advisor to the government, is not a completely independent, and could face competency and resource for handling TJ related cases. There might be a possibility of leniency in prosecution process, especially while prosecuting the perpetrators holding senior positions in political entities or security agencies. Also the process of reparation might get affected due to the shortage of fund to be distributed as relief. The monitoring authority of the Commission’s report has been given to the NHRC. However, the process of implementation of monitoring might automatically be affected due to lack of adequate resources, infrastructure, manpower and capacity. In this scenario, NHRC’s attempt to draw the attention of the government regarding the monitoring will make implementation ineffective. There must be a provision in the Act, which is binding for the government to implement the report. An independent and neutral body should be envisioned for monitoring the implementation of the Commission’s report.

Integration of Criminal Justice and TJ
TJ-related activities have been operated in countries which are progressing towards transformation from violence to peace, and establishment of sustainable peace and good governance especially after the violent regimes and dictatorships. However, there is a possibility of risk of reemergence of conflict and unstable society, if the issues related to serious human rights violation and crimes are not addressed on time. There can be a difficult situation while providing justice if the internationally accepted principle of criminal justice contradicts the TJ mechanisms. So, while implementing the principles of criminal justice in TJ period, the process of investigation and prosecution automatically gets affected and the risk of obstruction in judicial process might be created at the end.

The mechanisms related to TJ facilitates the process to prepare the base so as to provide justice and relief to the victims through prosecution and other means apart from identifying reason of crime or violation, its nature, targeted groups and victims. Criminal justice is an important part while addressing human rights violations. If it could be integrated with mechanisms related to TJ, it will facilitate to ensure justice to the victims. It is an important to adopt various types of methods by learning from international principles of TJ mechanisms based on past serious crimes, number of human rights violation and extent of serious crimes.

Conclusion
While adopting the TJ in practice by any country to address the past serious human rights violation or abuses and serious crimes, one can adequately learn from the past experience of the specific country. Since every conflict is unique, the strategies of TJ mechanisms could move towards positive direction if if the victim’s needs and desires are fulfilled from the past experience; if inclusion of civil society and stakeholders is ensured; if the state’s capacity and need is adopted within the guidelines of national demand and international responsibility, and if the mechanisms are developed based on the principle of cooperation It would be beneficial for Nepal if it could implement or integrate the four differnet components of TJ such as criminal prosecution, Truth and Reconciliation Commission, reparation and vetting together. If such mechanisms are used properly, it can play an important role on rebuilding social harmony, improving nation’s service providers serving the people and ending impunity. Therefore a successful result can be expected from TJ process, if the obligations like transparencies, fairness, proper legal process, political will and participation of national organizations are honestly fulfilled by the state.
It will be the insult to the victims of conflict, especially regarding the sensitive issue like TJ. If the efforts of the formation of TJ mechanisms are carried out by political actors with the intention of immunity, it will be disastrous move for sustainable peace and justice in the country. The process related to the TJ itself is a long and hectic. Therefore, it must be implemented within the view of national context with developing appropriate strategies. This will help to create the foundation of sustainable peace and good governance, stop the future incidents of serious human rights violation, create social harmony and reconciliation, deliver justice to the victims, and ensure action against perpetrators and amnesty with proper legal procedure. It will also help to create an environment necessary to build a civilized nation that respects rule of law, human rights, transparency, responsiveness and accountability.

* Conflict resolution specialist, human rights advocate and security analyst Budhathoki holds MA in Peace and Justice Studies from the University of San Diego, and is currently associated with the peace and Justice promotion Center (PEJUP), and Justice and Security Network (JSN).

This article first appeared in July 2014 issue of INFORMAL and is available at the link below.
http://www.insec.org.np/new/pics/publication/1407234555.pdf

Publish Date :August 6, 2014 

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