---Mahatma Gandhi
Conflict leaves behind a terrible legacy: the dead, wounded, broken families, destruction. War tears apart societies and weakens states. Violence sets back development, and leaves psychological scars that can take a generation to heal. Countries seeking to consolidate the peace often focus on the physical ruins of the conflict—police posts, schools, minefields. But for that peace to be sustainable you have to delve deeper, look at root causes, help the conflict-affected piece their lives back together, and ensure that the society you are rebuilding does not lapse back into violence.
Nepal will soon join the list of countries that have set up a truth and reconciliation commission (TRC). Such mechanisms have been looked to as ways to establish a single version of what happened during the conflict, to give a voice to victims and witnesses, and to move society forward on the basis of mutual understanding. They have also sought to address at least the most serious violations of fundamental human rights—violations that were in most cases already crimes. In Nepal it was never lawful to abduct, torture, rape, disappear or murder civilians.
That is why many in civil society, and amongst Nepal’s international friends and partners, attach great importance to the bill currently under discussion. We are disturbed by reports that some sections of society seek amnesties for those implicated in serious crimes. This would mean that alleged perpetrators would not even face justice in a court of law for the crimes of which they are accused. No implicit deal to excuse those alleged to have perpetrated heinous crimes—on either side of the 10-year conflict—is worthy of the name “gentlemen’s agreement”. Gentlemen do not seek to subvert the rule of law, to worsen the anguish of victims, or to play with justice like tokens in a game of dice.
The UK has supported many TRCs around the world, and we are a key supporter of the International Criminal Court. In Sierra Leone, for example, a TRC granted wide amnesties, but a Special Court also successfully dealt with some of the most terrible crimes. Some countries have concentrated purely on truth-seeking and healing, whereas others have sought to deal with the past through TRCs in parallel to extensive prosecutions. There is no one model of transitional justice, and the world community does not always get it right; but there are minimum standards. Indeed, international law and the global political mood have moved away from the provision of blanket amnesties.
There are minimum standards of transitional justice. International law and global political mood have moved away from blanket amnesties.
Yet a dose of pragmatism is plainly required. In order to be successful, mechanisms need to look both backward and forward: they should reflect not only the nature of a country’s conflict but also its peace-building needs. In Nepal many victims may indeed choose financial reparations instead of criminal prosecutions—but they must be given that choice. Those who argue that prosecuting the most serious cases would hamper or derail the peace process are wrong.
Looking at TRCs around the world, no country has the capacity (or the evidence) to prosecute every last perpetrator from a complex conflict. Nor would such a move meet the important aim of healing, rather than widening, divisions in communities across Nepal. And a vindictive TRC might deter important witnesses from coming forward with their testimonies, frustrating the equally important goal of establishing the truth about the conflict.
Nonetheless, certain crimes cannot be subject to blanket amnesties, and the TRC (as well as the Commission of Inquiry on Disappearances) must have the power to recommend cases for investigation. It is the UK’s concern that if the TRC proceeds on the basis of blanket amnesty, including for the worst crimes, Nepal may find itself in breach of international law, against its own treaty obligations, and counter to the commitments it made to the UN Human Rights Council.
Unfortunately Nepal does not have a proud history of commissions. While conflict victims, who should be the focus of the TRC, are clear what they want, you need only look at the sorry tales of the Malik and Rayamajhi Commissions to understand why expectations are low. The TRC and Disappearances Commission have to be different if they are to be effective and to embed the rule of law in a democratic Nepal. The political parties and security forces must ensure that they work freely and independently, with the access needed to call witness and inspect documents.
One way to do that is to appoint expert commissioners after public consultations, rather than the usual horse-trading between the parties. And if the Nepali people are to have confidence in the work of these commissions, they will need to strike an appropriate balance between reconciliation and justice. That balance will have to take into account international law as well as the domestic context in which the commissions will operate.
As Nepali politicians finalize the details of the two bills, they should be asking themselves: what do we want Nepal to look like after these two commissions have reported? They have the power to determine the answer. We could see a Nepal which is largely healed, with an appropriate number of prosecutions for the most serious crimes, impunity addressed, the truth established, and with reparations to victims.
Communities would be able to bridge divisions, and victims and perpetrators could find reconciliation. International law would be respected and the democratic transition consolidated. Or will politicians, egged on by those who wish to run from the past, decide simply to pay off victims, storing up resentment for the future? Will they force reconciliation on widows, sons and daughters, whether they wish it or not? And will they help create a Nepal where even the most serious, international crimes are not prosecuted, weakening accountability?
A country embarking on a journey of social, economic and democratic development cannot start by institutionalising impunity. Nepal will have to find the right balance that allows peace to take root without excusing the worst crimes of the past. Politicians will have to show courage, wisdom and vision to do what is right by victims and right by international law. By rendering justice to others, they will themselves win justice.
The writer is the British Ambassador to Nepal
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