We understand the (old) concern of the United Nations Office of the High Commissioner for Human Rights (OHCHR)—which was renewed in a note posted on its official website on Wednesday—regarding the two transitional justice bodies in Nepal: the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Person (CIEDP). The UN rights body is worried that the legislation on the twin transitional justice bodies that grant the TRC and the CIEDP the power to grant amnesty, even in most egregious cases of violations of human rights from conflict period, could boost the culture of impunity in Nepal. The cases which are criminal in nature, says the UN human rights watchdog, must go through the criminal justice system and that the transitional justice bodies can only complement the system rather than displace it. Again, we understand these concerns. If even the most egregious cases of rights violations go unpunished, there is no point in creating the sham of transitional justice. But we believe that a little pragmatism is also warranted as we go about investigating conflict-era cases.The various Maoist parties in Nepal rightly argue that when the then Seven Party Alliance signed the Comprehensive Peace Agreement with the warring Maoists in 2006, it was a recognition that the two sides had fought to a stalemate: no one had won and no one had lost. Even as the CPA was being signed there were voices of dissent within the Maoist party that the agreement would later come to haunt top Maoist leaders who could in time find themselves in international courts, facing charges of 'genocide'. It is easy to be morally righteous now. But at the time of the signing of the CPA, the focus was on ending the bloody conflict that had already claimed over 13,000 lives. The Maoist leaders were taken into confidence that there would be some 'leniency' when it came to investigating conflict-era cases. Only then did the CPA become possible. So this context should not be forgotten. This does not mean the most egregious rights abusers should be forgiven. In fact, we believe it is important to properly investigate these cases and punish the guilty so that justice is seen to be done and the thousands of families of those killed, injured or those made to disappear have a sense of closure.
But, again, a sense of proportion is also warranted. Even if we look at South Africa and its transitional justice mechanisms—in many ways the poster child of such bodies in the world—most rights violators were given amnesty; that was the price, it seemed, to be paid for lasting peace between the blacks and the whites. So we would like to request the rights bodies, both those within the country as well as those outside, to properly weigh the pros and cons of imposing a strict transitional justice regimen. We believe there has to be a mechanism whereby the families of those who were killed or those made to forcibly disappear are properly heard. When applicable, they must also get compensations. Moreover, in instances where there has been a grave crime and there was no political motive, it is only right that the criminal justice system takes up these cases. In the rest of the cases, it's a difficult balancing act. The biggest mistake would be to reduce such a complex issue to a clear-cut argument between rights and wrongs.
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