To forgive or not to forgive

Published On: September 12, 2019 01:00 AM NPT By: Deepak Joshi Pokhrel and Rajendra Senchurey

Failure of the government to adhere to the Supreme Court verdict in relation to amnesty could further agonize the victims, setting the ground for vengeance and violence 

The decade-long armed insurgency in Nepal ended with signing of the Comprehensive Peace Agreement (CPA) between the warring parties in 2006. One of the core agendas of the CPA was to address the legacies of the conflict through transitional justice (TJ) process. However, even after 13 years of the CPA, the TJ process seems to reach nowhere. Amongst many, one of the major jolting issues in the TJ is the demand for and fears against amnesty.

According to Merriam Webster dictionary, amnesty is the act of an authority (such as a government) by which pardon is granted to a large group of individuals. Usually, it is in the political violence that the large group of individuals gets engaged in. Therefore amnesty could most likely be defined as an official pardon for people who have been convicted of political offences. As for the war-era political violence of Nepal, amnesty became a largely disputed issue as the alleged perpetrators always tried to play on it to evade accountability whereas the victims and rights activists did not allow it to enter into the mainstream post-conflict peace and justice discourse.

Mohandas Karamchand Gandhi, the champion of non-violence movement, once said “eye for an eye will only make the whole world blind.” Despite all the good intentions involved, the principle of the saying varies from individual to individual in particular and country to country in general. Some may view it as an ultimate means to penalize the culpable for the deed while others may consider that such narrative will only give rise to further hatred among people—both victims and perpetrators—destabilizing the social harmony and peace further.

Just to recall, Nepal experienced bloody armed hostility killing thousands of people and rendering many homeless. During the conflict, lives in villages were extremely difficult. They were troubled by both the warring parties. It used to be reported that the Maoists capitalized on security force’s excesses by spreading stories of their inhuman treatment to children and women. The villagers, mostly youths, were held hostage by the state forces and the rebels in charge of spying against them. People used to be publicly shamed or tortured for the reasons they would never know. Rape and other forms of sexual violence were common in detentions or during interrogations.  In many places, the houses were burnt and the properties were seized. Sadly, the whereabouts of those taken into hostage by both the parties are still unknown, fueling the wrath among the families of the disappeared person.

Debating amnesty 
Like other conflict-torn countries, Nepal also experienced innumerable post-conflict challenges particularly in terms of transitional justice and clemency. These days, the intelligentsias are often seen divided on clemency to the conflict-era human rights abuses versus prosecution as per international laws. Some argue that it would not be justifiable to provide clemency to the perpetrators while others claim just the opposite. Whatever be their views on this, it should not ignore and undermine the voices of the victims who are the key decision-makers in this regard. If not, this would contradict the historic verdict of the Supreme Court (SC) of Nepal of January 2, 2014 and it would set a bad precedent for the post-conflict settings like ours. 

The landmark verdict of the SC signaled a significant breakthrough in relation to transitional justice debates in Nepal. The verdict has addressed some of the key issues and controversies that were largely responsible for a stalled TJ process. The court ruled that amnesties for gross violations were impermissible and vesting the commissions of wide discretionary power to grant amnesty was unenviable. However, it has not ruled the possibility of amnesty and has directed to prescribe guidelines on amnesty in the legislation itself. On a pragmatic note, the court has further said that the decision for leniency/amnesty or other alternative methods could be sought after considering a number of factors including the circumstances of the incident, the status and consequence of the investigation, the perception of victims toward amnesty and perpetrators, confession of crimes with apologies by perpetrators and overall impact of amnesty in society. It has further added that the participation of the victims is mandatory in the amnesty and reconciliation process.

Last year in October, Prime Minister K P Sharma Oli, while launching the book entitled Abataran written by Subha Shankar Kandel, said there will be no amnesty in cases of serious violation of human rights. The PM said that the government will follow all international conventions in war-era crimes. He was probably hinting at the critics who complained that the government failed to take the issues of transitional justice seriously.

Think of the victims  
Of late, voices are again doing rounds across the country about what would be the cases which can be provided amnesty and which are not. This has raised the eyebrows of the victims as January 2014 decision of the apex court clearly specifies the cases which can be granted amnesty and which cannot be. It has also spelt out that participation of victims is mandatory in the amnesty and reconciliation process. However, the verdict of the court seems to have fallen in the deaf ears of the political leaders of every hue. Failure of the government to adhere to the verdict in relation to amnesty could further agonize the victims setting the ground for vengeance and violence. 

Therefore, there should not be any confusion regarding the amnesty as it is linked to the sentiments of the victims of war-era crimes. Nevertheless, it is also an integral part of this peace and justice process. Without any doubt, the amnesty should help in building amicable relationships between perpetrators and victims through mutual understanding and compromises but never through enforcement which otherwise would instill the sense of justice denied in the veil of enforced reconciliation. To clear up the confusions regarding victim-friendly conditional amnesty, Nepal should not delay in introducing the amnesty law. Such law needs to be readily available once the TJ bodies start digging up the truths. It is thus highly recommended that the government starts wider consultations about amnesty now in order to avoid the last-minute hustle.

Pokhrel and Senchurey are conflict analysts working respectively with Go Go Foundation and Nepal Peacebuilding Initiative


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