In South Africa, for example, the truth commission received applications for amnesty from its participants and referred those who did not qualify to a prosecution process. In many countries, truth commissions have acted as a precursor to prosecutions by establishing the scope of human rights violations and collecting evidence that is later used in criminal trials. Prosecutions also can and have occurred long after initial transition and reconciliation efforts were concluded, particularly in Latin America.
One thing is universal among the alleged rights violators—they resist excavating the past to prevent the possible indictment of the senior officials and even political leadership. Similarly, due to diverse political ideology, poverty, ignorance and potential threat of reprisal, the victims are often unable to create uniformity in their voice and action for seeking justice and reconciliation.
VERTICAL DIVISION
In a vertically-divided society, securing transitional justice in post-civil war transition for severe breach of human rights, humanitarian laws and heinous crimes is a complicated phenomenon. It gets entangled and becomes more painful if the peace accord is accomplished as a result of a compromise between the warring factions in which neither side is a loser. Fear of reprisal and vetting, ´back-to-war threat´ posed by former insurgents, politics of appeasement, notion of victors´ justice, judicial complicity in addressing past crimes and lack of victims´ unity often lead to non-prosecution and culture of silent amnesty. Often the doctrine of transitional justice is either misinterpreted or manipulated to serve the favor of the so-called glorious victors who are responsible in committing giant abuses. Victims are often divided and unable to create uniformity in their voice and action for seeking justice.
The unity among violators and division among victims is also rooted on the unavailability and/or maneuvering of the victims´ statistics and the perpetrators´ profile. The dubious role of international political community toward pursuing a unified agenda for transitional justice further jeopardizes transitional justice mission.
SOUL-SEARCHING QUESTIONS
Is peace inevitable at the cost of justice? Is compensation a guaranteeing component of satisfaction? Does reconciliation mean ‘forget and forgive’? Does truth-seeking automatically lead to meaningful reconciliation? Does amnesty lead to guarantee of non-repetition? Does sharing of transitional power heal the wounds? Is it viable to convert the glorious victors as violators? What if there is obvious threat of ´back to war’ by one of the factions? These dilemmatic questions of critical concern must be demystified before proceeding for securing transitional justice.
In a vertically-divided society, securing transitional justice is a complicated phenomenon. It gets entangled and becomes more painful if the peace accord is accomplished as a result of a compromise between the warring factions in which neither side is a loser.
Fading public enthusiasm due to time lapse and the emergence of new armed groups and escalating political violence as well are also other major factors for non-prosecution. Newly emerged violent activities perpetuated by splinter groups generally overshadow even the heinous crimes committed during conflict. Massive erosion of moral authority among the political actors blended with politics of appeasement is the key factor to outrightly deprive the victims of justice they deserve.
VICTORS´ JUSTICE: NEPALI CONTEXT
Nepal´s current democratic honeymoon hangover is less likely to last long. Since time is the enemy of justice, there is a potential danger that the so-called doctrine of ´you keep quite, I keep quiet´ is likely to dominate the scene if the transitional justice agenda is delayed. The mindset of the UCPN (Maoist) as well as the former seven political parties as victors of the conflict appears to be acting as a retarding factor in excavating the past.
For many, dealing with current crime is more appealing than past abuses as it is perceived to be tedious, resource-consuming, risky and hostile. Probably, many human rights abuses have been already concealed by notoriously-skilled hands, powerful and influential people for their collective political aim.
The lack of political will to address impunity constitutes one of the main obstacles to the full respect of human rights and which continues to obstruct the work of human rights defenders. Similarly, in such a situation, transitional justice process is blemished by the vicious cycle of blame games among the key actors of the peace process. The blame game is not confined to the domain of the political players only. At some point, even the international agencies, including the UN, are not spared from criticism. Often the doctrine of transitional justice is either misinterpreted or manipulated to serve their interests.
CLARION CALL FOR JUSTICE
Despite such complex scenario, the general consensus among scholars and human rights organizations is to pursue for a transitional justice mechanism before it is too late. Since the domestic organs dealing with investigation and prosecution are sharply polarized due to political influence, rendering justice to victims through fair investigation is very much unlikely from the existing institutional set up. Some transitional justice champions believe that a hybrid tribunal may serve the actual purpose of addressing past abuses without compromising on professionalism. A home-grown process is the most appropriate option to ensure ownership and sustainability of the endeavor of this kind. However, such mechanisms must meet certain standards, including impartial and fair investigation and prosecution, use of international fair trial standards, and penalties that reflect the gravity of the crimes. The court(s), prosecutors, and defense counsel must be trained and equipped to handle proceedings focused on crimes under international human rights and humanitarian law– proceedings that are certain to attract a great deal of national and international attention and scrutiny.
Nepali domestic constituency for justice is minimal. The general public is not enthusiastic to re-examine what the state did in the name of their security, and see no necessity for national dialogue. This only helps to strengthen the psychology of perpetrators while depriving victims and their family members of any hope for justice and reconciliation.
Writer is president of INHURED International
ceasefire_nepal@yahoo.com
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