Transitional justice bodies became non-functional because they were more interested to appease political players than deliver justice to the victims
Despite failing to demonstrate any achievements in their last three years’ tenure, the government is extending the term of Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP), which expires on February 10, for yet another one year through an ordinance.
TRC and CIEDP were constituted amidst controversy to complete the pending transitional justice issue which is an integral part of peace process. Despite enjoying the benefit of doubts these bodies not only handled the cases ineptly but also failed to win the trust of conflict victims. Impartiality, independence and competence—the core values of the transitional justice bodies—are under question. Though constituted under the political consensus, they were unable to refrain from partisan politics and influence.
Since the popular movement of 2006, Nepal has had a number of commissions and committees formed to address issues related to political transition. Some of them delivered results despite the challenges. Interim Constitution Drafting Committee led by late Laxman Prasad Aryal, for example, paved the path to promulgate Interim Constitution with hostile rebel Maoists on board.
Similarly, National Monitoring Committee for Ceasefire Code of Conduct headed by Dr. Birendra Prasad Mishra created an environment for signing of Comprehensive Peace Agreement (CPA). The local level restructuring commission under chairmanship of Balananda Paudel contributed to holding elections at all levels and thereby establishing popularly elected governments.
Transitional justice process is not
limited to internal jurisdiction. It is
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TRC and CIEDP, though constituted in a political bhagbanda, are unlikely to deliver because the officials of these bodies lack conviction and at times seem clueless as to why and for whom they were appointed.
These commissions were formed after eight years of CPA though CPA had envisioned creating these bodies within six months. They were established under the faulty Act which neither meets international standards nor complies with Supreme Court (SC) orders to make heinous crimes punishable.
In this context, United Nations has taken a position of not engaging with and supporting these mechanisms. Conflict Victim’s Common Platform (CVCP) is ‘being critically engaged’. Accountability Watch Committee (AWC), a group supporting Nepal’s transitional justice process that comprises victims, human rights lawyers, journalists and human rights activists, has taken a stand of ‘being updated’ but ‘not engaged’. In this complexity, commissions were unable to foresee challenges. They also failed to command the confidence of the victims for which they were appointed.
In the last three years, political meddling was visible in CIEDP. It was unable to deliver results due to the ambiguity of its roles and responsibilities. It focused more on legality than justice. This is illustrated by one of its decisions of sending 400 complaints, out of more than 3000 that it received, to TRC jurisdiction pronouncing the victims as not ‘missing’ but ‘dead’ on the basis of the paperwork. This demonstrates not only the irresponsibility but insensitivity of the commission towards the victims’ fundamental rights to truth and justice.
Due to harsh economic conditions and practical difficulties including the transfer of properties and obtaining citizenship they were compelled to register them as dead, who are still missing. Many of the families are yet to carry out their last rituals as their whereabouts are still unknown.
TRC, on the other hand, suffered acute political interference throughout. It lost the trust and confidence of the victims due to its unfriendly behaviors and approach. One of the commissioners, known as victim-friendly, was isolated and politically pressured to quit. The chairman of the commission, though known as a thorough gentleman, remained in incommunicado for three months which invited another controversy. The internal conflict of TRC drew the attention of Social Welfare and Human Rights Committee of the parliament. The committee had to summon TRC officials for enquiry.
The internal dispute in TRC came to public notice during the period of registering complaints. Under the political influence, the war crimes were prevented from being registered, especially in the cases of use of child soldiers and treatment of armed persons after the surrender. This was in clear violation of humanitarian law. The official position of the commission on Tamele mapdanda (criteria for pending), was quashed by Supreme Court when it pronounced it as being against justice and deviating from its prime objectives. This issue remains unresolved even despite the court order.
Both the commissions ascribed their underperformance to not amending the TRC Act in line with Supreme Court order. But they have not initiated action on cases which could be possible even with the existing laws. In fact, the Act hasn’t prevented them from seeking the truth, identifying perpetrators, recommending promulgating acts with retrospective effect to persecute the individuals who committed heinous crimes, creating environment of reconciliation, proposing relief packages and reparation among others. The commissions became non-functional and incompetent because they looked more interested to appease the political players instead of delivering justice to the victims.
Going by the working procedures and approach of these commissions, it seems transitional justice process of Nepal will continue to linger without any punishment for the perpetrators of crimes. Though their tenure is being extended periodically, they cannot and will not deliver. In this context, they may only become the tools for political class to delay the process and ultimately deny justice. But how long can the victims wait?
With the government decision to give continuity to both the commissions with the current legal and organizational structure, there is a legitimate doubt that violations of international human rights and humanitarian law committed during the armed insurgency will be effectively addressed. This situation might attract universal jurisdiction, leading to internationalization of war-era cases.
We should be mindful that transitional justice process is not only limited to internal jurisdiction. It is a matter of international concern. Therefore, to deliver the message that Nepal is able and committed to addressing transitional justice issue, the government must amend the existing Acts without any delay and reconstitute the current bodies making it more reliable, transparent, independent, accountable and competent. The government should also begin the process to ratify the UN convention against enforced disappearances and Rome Statute of International Criminal Court (ICC) to prevent the atrocities faced by the country in the past, thereby contributing to sustainable peace.
The author is a human rights activist firstname.lastname@example.org