Transitional Justice A Tool For Durable Peace
Nepal has been pursuing transitional justice by instituting a mechanism of investigating into the cases of systemic serious human rights violations during a decade-long armed conflict between Government of Nepal and the then non-State actor, namely, Communist Party of Nepal, Maoist (CPN-M), which launched its armed struggle on 13 of Feb 1996 and ended on 5 Nov 2006, after signing a Comprehensive Accord (CA) with the government.
In the course of finding a durable and internationally recognised solution to the decade-long conflict, the government has formed two separate entities called Commission of Investigation on Enforced Disappeared Persons (CIEDP) and Truth and Reconciliation Commission (TRC) under a single Act headed by two separate chairpersons tasked with the job of probing into the incidents of serious human rights violations and enforced disappearances in order to find out and truth, ascertain victims and perpetrators, endeavour to bring them out before general public, achieve reconciliation between the victims and perpetrators, make recommendation on reparation and for legal action against the wrongdoers and issue identity cards and share information to those victims and their relatives on the result of investigation.
Both the commissions have received good number of complaints from the victims as well as their relatives who suffered injustice during the conflict period. Further, they have been analysing the categories of incidents they have received through complaints from the victims or their close relatives. However, it remains undisclosed on the number, types and nature of gross human rights violations being inflicted upon, as analysis work is swiftly ongoing. Hopefully, the results will come out soon.
Now the question arises as to the definition of gross violation of human rights and crime against humanity that are relevant to Nepal’s context. Gross violation of human rights involves deliberate deprivation of right to fundamental freedom such as right to life, dignity, liberty, individual autonomy and so on. Similarly, crime against humanity denotes certain acts that harm civilian population, public and private property, unarmed soldiers, sick persons, health personnel and health facilities and other inhuman atrocities during armed conflict. There is a list of more than six hundred rules that list the gross violation of human rights and crimes against humanity.
International legal framework, which mainly constitutes three legal bodies, namely, international human rights laws (IHRTL), international humanitarian laws (HL) and international criminal laws (ICL), have listed crimes as mentioned above. Generally speaking, respective state governments are responsible to implement them where they are signatories to the international legal frameworks, covenants, and treaties. Where the repressive states do not demonstrate their willpower to apply the provisions of international legal obligations by adopting those provisions into their domestic laws, then the international community comes forward to fulfill its responsibility in two forms. They include the doctrine of Responsibility to Protect (R2P) where the serious atrocities have been committed in times of armed conflict in order to protect the innocent civilians and to prosecute the violators of IHL and IHRTL by pursuing judicial trials. For this purpose, the International Criminal Court (ICC) has been instituted to prosecute, punish and prohibit the incidents of serious violations of human rights, genocide, crimes against human rights, aggression and other war crimes.
International Criminal Law (ICL) has been framed, basing the international law, by international community including the UN system to protect, punish and prohibit future atrocities by the hostile parties. These bodies of laws have specified four sets of crimes as serious international crimes- the crime of genocide, the crime of aggression, the crimes against humanity and war crimes. Nepal’s conflict has nothing to do with the former two crimes in that such incidents never happened in this country. Other crimes were, however, committed during decade-long conflict in the country.
The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act (TRC Act) lists the following acts as gross violation of human rights- murder, abduction and hostage taking, enforced disappearance, causing mutilation or disability, physical or mental torture, rape and sexual violence, pillaging, illegal possession, damage or arson of private or public property, forceful eviction from house and land or any other kind of displacement, any kind of inhumane acts inconsistent with the international rights or humanitarian law or other crimes against humanity.
Here the phrase - any kind of in inhumane acts inconsistent with the international rights or humanitarian law or other crimes against humanity – seems vague and challenging to apply for the reason that interpretation of this phrase could indicate any of more than 600 crimes listed in the IHL, HRTs and ICC, and hence needs further clarification. Otherwise it could be impracticable to apply this provision.
Likewise, the rape and sex related crimes seem difficult to criminalise as the time limitation for complaining against the perpetrators as prescribed in the Civil Code remains 180 days whereas the crimes have taken place years earlier. The provision of defining torture is another challenge to interpret and apply, which needs further clarification.
Now one million dollar question arises as to how to penalise those offenders against whom complaints have been lodged by the victims and their next of keen, stating injustices committed upon them. At this stage the application of transitional justice system could be a useful tool to settle disputes from a decade-long conflict. The government’s efforts towards this act are moving to the right direction even as numerous challenges lie ahead that need to be handled with impartial, appropriate and internationally recognised manner as the international community is goggling over our efforts.
Setting up of the two commissions mentioned above are only the primary step. Using the tools of transitional justice, as exercised by more than 30 countries around the globe, would be of utmost importance for the practical, peaceful and durable solution to the decade-long conflict. The tools include apology, reconciliation, reparations, financial compensation, package of socio-economic-academic development for the victims, sentencing those found guilty, use of customary practices prevalent among communities of Nepal, providing amnesty for the incidents agreed upon by both the sides and so on. Judicial use of those tools would, for sure, assist in finding durable and judicial solution to the remaining part of peace process – gross violation of human rights in Nepal.