Whither Transitional Justice?
The tenures of the Truth and Reconciliation Commission (TRC) and the Commission on Investigation on Enforced Disappeared Persons (CIEDP) were recently extended for another one year. The tenures of the commissions were extended till February 9, 2019 last year. These commissions were set up in 2015 after the enactment of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission (EDETRC) Act, 2014.
The provision of the transitional justice mechanism was enshrined in the Comprehensive Peace Agreement (CPA) that was signed by the government and Maoist rebels in 2006. It was also incorporated in the Interim Constitution of 2007. As per the provision, transitional justice should have been delivered to the victims or their families within six months from the signing of the CPA. Now it has been over twelve years since the CPA was signed and the Maoists have also come back to the mainstream of national politics; still, the conflict victims or their families are yet to get justice.
The transitional justice mechanism is part and parcel of the peace process. Through the peace process, the Maoist militiamen have either been integrated into the national army or returned to civilian life. The management of the Maoist militia is a great achievement but unless the delivery of transitional justice is completed, the peace process cannot be said to have been complete. The main objectives of the transitional justice mechanism are to give justice to the conflict victims or their families by way of reparations or by some other means and to punish the perpetrators for gross human rights violations. Such a mechanism plays a pivotal role in maintaining social peace and harmony and in preventing grave crimes from recurring in the future. Establishment of peace and harmony will create an environment wherein conflict victims or their families forget the wounds of the conflict and identify themselves with the national development of their countries. That is why the transitional justice mechanism is formed after a conflict or war around the world.
The question of moment is why has the transitional justice process been lingering for so many years? The transitional justice mechanism ensures that the victims, or their families, of the Maoist insurgency (1996-2006) get justice for gross crimes perpetrated by both the government security forces and Maoist insurgents and the perpetrators get punishment for their grave crimes, which include murder; rape and sexual violence; physical or mental torture; abduction or hostage-taking; forcible eviction from houses or displacement; mutilation or infliction of disability; looting, possession, damage or arson of private or public property; and other inhuman acts incompatible with international human rights or crimes against humanity. However, the TRC and the CIEDP say that they are investigating the conflict-era cases but not a single person has been recommended till now for legal action or prosecution.
The TRC has received over 60,000 complaints, while the CIEDP has received over 3,000 complaints. The deluge of such complaints shows that the conflict victims or their families are desperate to get transitional justice but the government seems to be dragging its feet. This is because thorough and impartial investigations may implicate many leaders and high-ranking security officers in heinous crimes. This could be the reason the government has inserted the provision on general amnesties in the EDETRC Act. But with opposition from various quarters, including the United Nations, the government has hesitated to press ahead with the transitional justice process. Inordinate delay in delivering transitional justice has thrown cold water on the hopes of the conflict victims or their families that they will get justice.
There are several drawbacks in the EDETRC Act, the major ones being a lack of international standards, possibility of amnesties to the perpetrators and possible reconciliation of conflict cases without the consent of the victims or their families. All these are most likely to create a state of impunity and hence defeat the purpose for which the TRC and the CIEDP have been formed.
If the conflict victims or their families are to be delivered justice in the true sense, the existing EDETRC Act needs to be amended in line with international standards and the judgments of the Supreme Court. The TRC and the CIEDP also should be equipped with adequate human, logistical and financial resources to facilitate their work. More importantly, the commissions should be free from political interference and be allowed to work independently. As long as there is political interference in their work, they cannot work effectively and impartially. Further, the National Human Rights Commission and the UN High Commissioner for Human Rights should be allowed to monitor the work of the commissions. Nepal is a member of the UN Human Rights Council.
The conflict victims or their families have lost patience. They want justice at any cost. The TRC and the CIEDP have one year to complete investigations into the conflict-era cases and recommend prosecution against the perpetrators. As it has already been inordinately late, it would be judicious on their part to complete their task within one year. Once the world community was very eager to see Nepal’s transitional justice process completed.