The UN Office of the High Commissioner for Human Rights, in its 2012 report concluded that, “there exists a credible allegation amounting to a reasonable basis for suspicion that a violation of international law has occurred” and “these cases merit the prompt, impartial, independent and effective investigate by competent judicial authorities.”
The government and the Maoists signed the peace agreement to put an end to the ongoing conflict. The agreement was founded on the commitment to uphold the human rights and international law. The two parties mutually agreed to set up the truth commission for successfully carrying out the transitional justice (TJ) process.
TJ process is primarily based on the political structure of the nation and social contemplation of past violations. The global practice of TJ includes formation of the truth-seeking commission, prosecution of alleged violations, vetting, compensation and reparation to the victims. Nepal has developed the TJ governing law to implement the peace agreement. The Enforced Disappearances Enquiry, Truth and Reconciliation Commission (EDETRC) Act, was passed and promulgated by the parliament in 2014.
The act set up two high-level mechanisms: Truth and Reconciliation and Commission of Investigation on Enforced Disappeared Persons. These commissions are mandated to register complaints, investigate, mediate and recommend names of the perpetrators for judicial prosecution.
The end goal of these mechanism is to create an atmosphere for reconciliation and ensure violations are not repeated. Even after years of formation, the commission and its independency is in utmost controversy. The commission was first formed in 2015 and as it could not significantly deliver much even after term extension, the mechanism is currently vacant. A new list of commissioners are ready to take the positions for the next number of years. What status quo evinces is: delivering on transitional justice is not really the priority for the government, regardless of the party alliance, and that the commitment expressed while signing the peace agreement, is now no more obliging in the contemporary politics of Nepal.
Delay Promotes Impunity
Media Foundation estimated in its report in 2011 that the decade-long conflict claimed around 17,265 lives, left 4,305 disabled, 78,675 dispossessed and displaced, thousands of civilians tortured, and hundreds of women/girls victims of rape and other forms of sexual violence. The whereabouts of around 1,302 is still unknown.
This is the rough figure of what has been inflicted by the war on the state and the people. The figure and reports on cases of violations reflect the disregard and contempt for human rights that resulted in barbaric acts during the conflict. Institutional impunity for these crimes have outraged the conscience of mankind.
Conflict victims view the legislation as a tool that allows the perpetrators to enjoy impunity. Less has been done to hold anybody accountable for the list of violations. Successful TJ programs recognize the centrality of victims and their special status in design of such process. Prevailing law is not victim-centric and it also contravenes with the established human rights principle.
The OHCHR Note outlined that the act does not provide sufficient guarantees of independence and impartiality of the commissioners.
Commenting on specific provisions of the act, the note highlighted that clause 13(2) and (3) suggests that the diversion of conflict-related cases from criminal justice process to the TJ commissions for consideration. This will eventually result in criminal investigation or prosecutions being possibly delayed, prevented or even denied.
The act drew criticism as it was drafted extraneously and without scaling of international standards that Nepal abides by. The provisions of the act on investigation, prosecution, amnesty, reconciliations do not comply with the international standards. TJ process not only concerns about the monitoring, documenting or reconciliation of the violations, it also focuses on seeking the truth behind the crimes, providing justice to the victims, ensuring right to knowledge and establishing accountability on the part of the wrongdoers.
Principle 19 of the UN Updated Principles on Combating Impunity provides that, states shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law, and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.
Clause 22 of the act has empowered the commission to start mediation and proceeding reconciliation after the application has been filed by either party. The provision purports a situation where the commission could play a major role in concluding reconciliation between the parties, even when either of them files the application for mediation without other party agreeing to it.
Law Delivering Ineffective Remedy
Article 8 of the Universal Declaration of Human Rights states, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.” The primary law regulating the TJ process of Nepal ignores the right of effective remedy facilitated by the competent national tribunals. Clause 2(e) of the act defines “reparation” as “compensation, facility or concession made available to the victims as stipulated in Clause 23.” Where Clause 23(1) reads “reparation”, including “compensation, restitution or rehabilitation or any other appropriate arrangement to the victim.”
The assertion of law depends on how definite the words of law are. Definition of “reparation” should be made more assertive by specifying the victim’s right to reparation, which also entails to right to restitution, compensation, and rehabilitation, measures of “satisfaction” and guarantees of non-recurrence.
TJ process assists post-conflict and transitional societies in investigating past human rights violations and bring out the know-how of the events taken place. The right of individuals to know the truth is supported by several treaty bodies, regional courts, and international tribunals. TJ commissions are non-judicial by nature. The best it can do is, map out patterns of past violence and conclude on how these destructive events developed into war crimes. This is an incremental step toward realizing the right to know the truth.
For the effective implementation of the right to truth, a strong and credible documentation system is prerequisite. The TJ commissions have recorded thousands of complaints. But to look into the merits of the case has been a far cry for the mechanism. Delay in functioning of the TJ commissions, have already caused vulnerability in securing evidence against the violations. Timely investigation and documentation of the complaints, would have generated a rich source of information regarding the history of conflict and the repressive actions of the state actors. Archiving of the complaints, securing the imminent evidence and subsequent development of documents was vital to ensuring victims’ and societies’ right to the truth. On these matters, Nepal as a state has failed in its obligations.
A Non-Concluding Remark
Civil society members, human rights activists and people of Nepal have been voicing for establishing the accountability for violations committed during the conflict, but progress remains measurably slow. The Cabinet passed the amendment draft and is ready to proceed the draft in the House. The draft has been clearly rejected by the victims and other interest groups. The draft has failed to incorporate the orders of the court, recommendation by victims, international organization and previous commission enquiries.
In this pretext, a sense of doubt on the ownership of the mechanism is palpable. In order to regain confidence, prosecution should start immediately, in the cases where court has already issued arrest warrant or writ of mandamus. The next step would be to amendment in the law as a way-out to slot in the resentments of the victims and to widen the rationale of transitional justice.