Opinion Forum

In general, transitional justice incorporates the issues of promoting justice, ensuring reparation and initiate reconciliation. The process of acknowledging, prosecuting, compensating and forgiving for past crimes after the conflict is commonly described as transitional justice process. Systematic abuses of human rights that are not adequately addressed could create a social unrest, and often contributes for the escalation of conflict and renewed violence.

Increasing impunity and hesitation of post-conflict governments to conduct a thorough investigation and carry out action against perpetrators creates vulnerability in efforts of establishing sustainable peace, rule of law and inclusive democracy. In post-conflict situations, the state is responsible for addressing trauma of victims of conflict, ensuring justice, and establishing mechanisms that documents the stories of victims, analyzes human rights abuses and atrocities, identifies perpetrators and recommends authorities to initiate appropriate judicial and administrative action. While permanent mechanisms in post-conflict states are usually slower and time-consuming, the government should take initiatives to set up transitional justice mechanisms to provide justice quickly, but responsibly, to the victims of conflict through reparations and their recognition in nation-building process.

In general, transitional justice incorporates the issues of promoting justice, ensuring reparation and initiate reconciliation. The process of acknowledging, prosecuting, compensating and forgiving for past crimes after the conflict is commonly described as transitional justice process. Systematic abuses of human rights that are not adequately addressed could create a social unrest, and often contributes for the escalation of conflict and renewed violence. Therefore, it is important to maintain the rule of law after the conflict or authoritarianism to build a foundation for sustainable peace, and well-functioning and responsible states.

Each post-conflict situation has unique character and may require different measures to address past wrongs. International experiences demonstrate that transitional justice mechanisms are found effective if they are combined with other approaches such as judicial (trials and legal reforms) and non-judicial (truth commissions and reparation schemes) measures. However, the basic challenge of transitional justice strategy is to effectively respond to past abuses in ways that establishes truth, acknowledges victims’ suffering, holds perpetrator accountable, provides compensate for past wrongs, prevents future abuses, promotes social healing, and reforms security and justice institutions.

Determining transitional justice mechanisms is always difficult task that depends on many factors and the unique circumstances of a period of abuse and conflict. Some of the factors must be considered prior to make formal decision regarding transitional justice mechanism, which includes level of crime, number of perpetrators responsible and their current status, country’s political context and available resources, credibility of national judicial mechanisms and nation’s capacity to afford individual reparations.

Transitional Justice Approaches
In post-conflict situations, transitional justice issues are commonly addressed in four ways that includes conducting criminal prosecution, establishing truth commission, carrying out reparation programs and launching vetting, which are described briefly herewith.

Criminal Prosecution is considered as one of the most direct form of accountability, and found effective if credible courts are available to hold trials. However, strong political will is essential to sustain prosecutions, which is often lacking when perpetrators or their political partners are still sharing power. Prosecutions take significant time and money to conclude, and only address a narrow range of individual crimes, and prosecute typically small number of perpetrators. But successful prosecution gives the strongest statement against impunity, and signals to victims that the new government is committed to introduce accountability mechanism to break with an abusive past.

Prosecuting perpetrators of mass crimes is an international legal obligation, and is often seen as a moral good as well as sending a strong social message that criminal act cannot be tolerated in the future. Prosecution helps to avoid lawless revenge and retaliation, and to maintain or restore the rule of law. However, prosecutions are often expensive, time consuming, and divisive, and no state will have adequate resources to prosecute all of the hundreds if not thousands of perpetrators who have committed crimes during a period of conflict.

Several conditions are necessary to ensure the capacity and technical ability to investigate and prosecute systematic crimes, as well as analyze historical, military and political details of the conflict and relevant laws, and study about sophisticated and appropriate trial management techniques that handles complicated evidence, and provides guidelines to organize a complicated trial, protects evidences from destruction, gathers crime-scene information and identifies crime investigation process.

In many countries recovering from conflict, national judicial systems are not well functional to handle the size and complexity of prosecutions of mass crimes. Domestic courts are seen as politically biased even they have expertise to conduct hearing on complex cases. In such cases, it may be necessary to appoint an independent board or commission to oversee investigations and prosecution. It may also be helpful to include civil society groups, victims’ groups or international actors during an entire process.

Combining prosecutions with other transitional justice mechanisms seems effective to conduct trials. In this regard, a truth commission may work side by side to a tribunal, so that both mechanisms can offer a more complete accounting of the causes and consequences of a conflict.

Truth Commissions are suitable for analyzing widespread patterns of abuses or atrocities, whether committed in secret by the state. It aims to ascertain the facts and causes of abuse in the most objective way possible, and not necessarily to directly punish individuals involved. As official investigative bodies, truth commissions require significant political will to implement, and generally not effective unless the commissioners are truly independent from the parties to the conflict. Truth commissions should be formed on the basis of extensive public consultations and while underway should undertake significant public outreach and engagement.

Truth commissions should comprise independent experts, responsible for investigating and reporting on patterns of human rights abuses over a certain period of time in a specific country or in relation to a particular conflict. Truth commissions allow victims, their relatives and perpetrators to produce evidence of human rights abuses, providing an official forum for their accounts. Truth commissions officially acknowledges past abuses, recognizes the suffering of victims, identifies patterns of violence and more specific acts of wrongdoing, and make recommendations to prevent a recurrence of violence in the future. Truth commissions may also identify individuals responsible for acts of violence and even recommend cases for prosecution, but cannot be expected to find the ultimate truth for all individual cases.

Some of the main reasons to establish a truth commission includes establishment of facts about violations of the past, acknowledge past abuses, a contested or denied history, restore victims’ dignity and respond to some of their concrete needs, prevent future abuses by recommending reparations or institutional reforms and by reaffirming social norms, and promote accountability and justice, as well as initiate reconciliation in the society.

Truth commissions are not appropriate for all situations. If a commission is to be established, many strategic decisions need to be taken prior to design appropriate mechanism. Therefore, it is advisable to hold broader consultation with civil society and victims and involve them from the beginning of the process. Such consultations must be focused on the process of establishing truth commission and the mandate of the truth commission (objectives, legal authority to interview witnesses and collect testimony, types of violations that the commission will investigate, time period to be investigated, granted timeline to complete its task, and authority to issue recommendations).

While determining the mandate and framework for a truth commission, the interrelationship with other justice mechanisms and rights institutions should be clarified. No truth commission can investigate each and every violation that occurred during a period of prolonged conflict. Truth commissions operate under time constraints and the desire for an expeditious process imposes limits on the number of cases a commission can investigate. This is often very disappointing for victims, who often seek specific truth about their personal case. Victims also often expect reparations, which truth commissions are neither mandated nor resourced to give.

Issuing comprehensive recommendations for reparations or reform is relatively easy for a truth commission. Even when a truth commission mandate requires that a government implements its recommendations, there are often few resources available and political will typically erodes as time passes. Mechanisms for follow-up should therefore be considered even before a truth commission is established. A successor body can be designated to monitor the implementation of the recommendations, to continue investigations and preserve the archives, which can be an existing institution such as a National Human Rights Commission in Nepal. Civil society should also be encouraged to monitor and follow-up the implementation of the commission’s recommendations. A trust fund may also be created in advance to pay for the commission’s most important recommendations.

Truth commissions can foster a common understanding and acknowledgement of an abusive past, and if they are effectively embedded in a comprehensive justice perspective, they can provide a foundation for building a strong and lasting peace.

Reparations and Compensation to victims of conflict, are often the most demanded recourse for past violence, but the most difficult to achieve, particularly when the government has few resources to give as compensation. For reparations to work effectively, victims must be identified, their injuries must be quantified, and resources must be available to provide some form of cash payment or in-kind service to the aggrieved party. Compensation may be symbolic (a memorial or an apology), or in-kind (such as free health or education benefits) as well as monetary support recognizing that no material payment can fully compensate for an emotional loss. Reparations are a powerful tool for helping victims to recover from conflict, but can also sow division when one group is favored for reparations over others who may deserve them.

Reparations are either payments or services given to victims of past abuse as compensation for the harm they or their loved ones have suffered during a period of conflict. International human rights and humanitarian laws recognize that victims of systematic human rights abuses are entitled to prompt, adequate and effective reparation and states have a duty to provide comprehensive reparations. States are responsible for ensuring the enjoyment of human rights by all individuals within their borders. A state must also provide reparations to victims of non-state actors.

In post-conflict environments, no payments can ever fully compensate for torture or killing, and the reality that many governments cannot afford large cash payments to thousands of victims. Reparations are intended to recognize and repair harm, restore victims’ dignity and rebuild trust and solidarity among communities that have been torn apart by violence. Reparations range from purely symbolic acts to mostly material benefits. Symbolic reparations can be apologies, re-naming streets, commemoration days, dignified burial sites, etc. The right of victims to a remedy and reparations is firmly included in human rights law and humanitarian law. Reparations can make other transitional justice mechanisms more effective because they directly change the situation of victims. The benefits of a sound reparations program can positively affect not just the victims but society as a whole. Reparations are essential to build sustainable peace and civic trust as well as to reaffirm essential social norms and values.

Among the different types of reparations include restitution (re-establish the situation before the violation was committed); compensation (economically assessable damages are compensated); rehabilitation (medical, psychological care, administrative rehabilitation, legal and social services); satisfaction (cessation of violations, attempts to reveal the truth, search for the disappeared, reburials, apologies, judicial) and administrative sanctions (such as vetting), commemorations, memorials, etc.); and guarantees of non-repetition (steps to prevent reoccurrence of abuses such as initiating security sector reform programs, enhancing judicial independence and access to justice, improving social services, etc.).

Reparations are most effective if they fit into a coherent overall plan of transitional justice including, for example, revelation of the truth or the removal of perpetrators form public institutions.

Vetting is designed to restore public trust in institutions by removing perpetrators from official positions, or preventing unqualified or abusive individuals from being appointed to government posts where they might corrupt the credibility and performance of a new regime. Vetting programs are useful in cases where violence was committed by government officials, such as police and military officers, who remain in government posts even after violence has ended. Vetting is an administrative rather than a judicial action, and therefore requires a lower standard of evidence to implement, which must be conducted according to objective standards and fair procedures.

Vetting refers to the reform of an institution’s personnel by removing or excluding abusive, corrupt, or unqualified employees. Vetting program focus particularly on reforming the police, prison services, the army and the judiciary because they are often responsible for past human rights abuses. Vetting is based on the assumption that fair and efficient public institutions are crucially important to prevent future human rights abuses. Vetting processes are therefore undertaken to restore public trust in institutions, increase their legitimacy and efficiency in delivering services to all citizens, and to signal the break with the abusive past.

Vetting is generally less expensive and less complex than large-scale criminal prosecutions, but still provides a form of individual accountability for those who were responsible for violations and their individual conduct. Vetting aims at excluding from public office those who are responsible for past human rights violations and serious crime. Two basic forms of vetting processes include review and reappointment. Based on either of these processes, individuals who are well qualified and have not contributed to abuses may receive a certificate that allows them to continue employment. In extreme circumstances, an individual may be permanently banned from all types of public employment. The criteria for excluding someone from public office must always be established with a view to the context. These criteria should be transparent and as clearly defined as possible. Vetting should not be based on large-scale purges or removals on the basis of party affiliation.

Vetting can be used to regain the population’s trust in institutions and serves to prevent the recurrence of violence stemming from public institutions. If vetting is carefully planned, adequately resourced, mandated and overseen, it can contribute to improve the institutions’ commitment to serve all citizens and to safeguard the human rights of all.

Transitional Justice and Nepal
In Nepal, the debate of transitional justice has remained central during the entire peace process and even after the election of the constituent assembly. The Comprehensive Peace Agreement (CPA) of November 2006 and the Interim Constitution (IC) of January 2007 recognize the importance of establishing truth, prosecution of perpetrators and ensuring justice and reparations for victims of the conflict, as well as the formation of disappearance, and truth and reconciliation commissions.

Nepal’s past experience demonstrates that commissions have been formed as part of face-saving strategies and a way to avoid public pressure for bringing perpetrators to account. The state has set precedent for the protection of perpetrators from judicial action, which has institutionalized impunity and threatens the rule of law. Although the 1990 Mallik commission submitted a comprehensive report with the name of perpetrators, the government made the choice to disregard the recommendations on the basis of inadequate legal arrangements for initiating cases in the court. With the report having little to no circulation among the public, many of those found responsible in the report were elected into the democratic parliament and able to gain power in the legislative, as well as in the cabinet.

Similarly, the five-member High-Level Probe Commission formed in May 2006 to conduct an investigation into loss of life and property due to the repressive acts of the King’s regime and into the abuse of state funds and violation of human rights. Despite its mandate, the government was once again reluctant to enforce the initial decisions of the commission, and instead gave amnesty to the senior Army officials, including retired Chief of Army Staff Pyara Jung Thapa and Rookmangud Katawal. The commission conducted secret hearings with the accused, keeping the media and the human rights community at bay, thereby excluding the public from the proceedings. Even though the commission found the King responsible for suppression and abuse of state funds and authority, it brought incomprehensive and incomplete recommendations with divided opinions, as well as biased recommendations in terms of actions against senior and junior office holders, and retired officials that drew questions of their professionalism and efficiency.

More importantly, the government’s inaction and decision not to disclose the commission’s report disregards the sentiment of the people’s movement. Ignoring the commission’s recommendations and consequent inaction by the state demonstrates the cycle of impunity that exists and will continue to exist if appropriate judicial actions are not taken in a timely manner. Since state and non-state actors have been responsible for human rights abuses and atrocities since the beginning of the conflict in February 1996, it is essential to set up transitional justice mechanisms to handle appropriately and impartially, and ensure justice to the victims timely and quickly.

However, serious human rights abuses and atrocities committed by the parties to the conflict that saw the loss of nearly 15,000 lives, more than 1300 known cases of disappearance, and thousands held in illegal detention, tortured, and raped, must be dealt with through transitional mechanisms to ensure justice and deter future violations. As per the articles 5(2)(3), 5(2)(4) and 5(2)(5) of CPA the parties to peace process (Government of Nepal and the CPN-Maoists) have agreed for setting up commissions to gather details of disappeared persons, the national peace and rehabilitation, and the truth and reconciliation commission. In reality, none of these commissions are formed, and even close to be formed. In past, the government has made several attempts to set up a disappearance commission through ordinance, but failed to form as a result of immense pressure from national and international stakeholders. However, the government has currently re-drafted the Disappearance Commission Act and prepared to submit in parliament. In terms of Truth and Reconciliation Commission, the Peace and Reconstruction Ministry has been actively engaged holding public consultations to prepare the foundation and increase support from the stakeholders.

While justice holds a central place for the establishment of rule of law and an inclusive democracy, the well-planned formation of these commissions remains important to bring some healing, closure and justice to victims. Due to the destabilizing effect of an inaction for justice, the peace process and transition to democracy is dependent upon establishing responsible and timely mechanisms to pursue justice, which would also contribute to ending the ongoing impunity that has plagued Nepal. In Nepal’s context, initiating transitional justice process seems essential for sustainable democratic polity, good governance, and support constitution-making and nation-building process, as well as set up guidelines for security sector reform and management of former combatants.

Conclusion
Transitional justice process (criminal prosecution, truth commissions, reparations, and vetting) provides golden opportunity for nation-building, and stops the legacy of violence. It can also initiate the process for national healing, returning the dignity of citizens, strengthening state institutions to serve the public, and ending the culture of impunity. While carrying out transitional justice process, transparency, fair and due process, political will, inclusion of national organizations, and sincere communication with the public are considered fundamental elements for successful outcome, which can significantly increase the chance for sustainable peace and good governance, thereby preventing future abuses.

Source: Informal (Vol 28, No. 3, July-September 2009)