How Nepal’s transitional justice mechanisms can be rectified during the third UN Universal Periodic Review

On January 21, the third cycle of the Universal Periodic Review of Nepal’s human rights record will take place in Geneva at the Human Rights Council. During the review, many states and civil society organisations will raise questions regarding the actions Nepal had committed to take during the first and second cycles of the Universal Periodic Review to improve human rights in the country. The review presents an opportunity to bring back on a global platform the agenda for human rights, justice, rule of law, and government accountability in Nepal. Over the past few years, while delivering justice and dealing with serious human rights abuses, including enforced disappearances, Nepal has failed to specifically address transitional justice issues, victim rights, and criminal accountability. Yet, domestically, political elites laud a ‘successful transition’. One could, however, claim that this ‘transition’ has only re-established a polity where all major actors from both sides of the conflict have consolidated their positions and ensured that a patronage-based, corruption-driven governance continues. Nepal’s civil conflict -- from 1996-2006, between the joint security forces led by the then Royal Nepal Army and the Maoist rebels -- saw widespread human rights violations, including torture, enforced disappearances, extrajudicial arrests, killings, and rape, committed by both sides. But in the post-conflict years, Nepal has failed to address the needs and desires of conflict victims while attempting to provide resolutions to cases of human rights violations. Thus, during the upcoming review, characterising this failure as a broader justice issue offers new opportunities to advance a transformative agenda. That framing is necessary because international actors and donors appear to have largely abandoned a broader justice agenda that includes social exclusion in favour of one advocating for a narrower agenda of judicial accountability for conflict-era crimes, despite the challenges to achieving this in the current political environment. 

Read more: Fear of what happens next in transitional justice divides the victims

The government, meanwhile, is delighted to return to how things were pre-conflict, where it was ‘business as usual’. It would rather focus on a development agenda in which issues of social exclusion are increasingly marginalised, and on ensuring the usual flow of donor funds to help sustain a political economy of patronage. The greatest threat of such an approach is that it will leave unaddressed the divisions that drove the conflict and snuff out challenges to the discriminatory state, as has happened in various conflicts around the world.

Transitional justice efforts 

Transitional justice efforts in Nepal continue to be elite-led and top-down, far removed from the daily realities, priorities, and needs of the victims and their families. The political maneuvering and lack of transparency of Nepal’s two transitional justice commissions have alienated victims and resulted in a lack of trust and credibility on the part of victims. The stalemate between international and domestic human rights organisations and the Nepali government over issues of criminal prosecution and amnesty has impeded progress in other areas of transitional and transformative justice. While international organisations have focused on legal and prosecutorial justice in Nepal, the primary goal of victims and survivors is to learn the truth about what happened to them and their relatives, and to secure social and economic justice, recognition, and memorialisation. Since Nepal’s last Universal Periodic Review in 2015, no changes have been made to the Transitional Justice Act and all efforts to address past human rights abuses have excluded victims’ inputs. This article focuses on the multi-dimensional needs of the relatives of the disappeared, examines how elite political interests have repeatedly co-opted efforts by the victims to pursue justice, and concludes with recommendations for the Government of Nepal during its third Universal Periodic Review.

Challenges facing Nepal’s transitional justice bodies 

The 2006 Comprehensive Peace Agreement mandated that investigative commissions be constituted to uncover the truth about human rights violations that occurred during the conflict. In 2014, the Transitional Justice Act established two such bodies: the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP). However, the final version of the act that was passed—which differed substantially from an earlier version that had been shared with victims’ and human rights groups—contained provisions for amnesty for perpetrators of human rights violations, including torture, disappearances, and rape. In 2014 and 2015, the Supreme Court of Nepal ruled that the amnesty provisions in the act were unconstitutional. Despite the Supreme Court’s ruling, the Government of Nepal did not amend the act. In April 2020, the Supreme Court rejected a petition by the government to reverse its 2015 verdict and reiterated its previous ruling that the act be amended. The government has yet to amend any part of the act. As of 2018, the TRC has received more than 60,000 complaints and the CIEDP over 3,000. However, little progress has been made to investigate these cases, despite the fact that both commissions have been granted several extensions. To date, the commissions have not recommended any cases for prosecution. No victims have received any information regarding the whereabouts of their relatives, and no recommendations for reparations or legal reforms have been made. This is the result of few resources and inadequate funding, a lack of expertise, the absence of legal restraints, a lack of political will, and in some cases, active political obstruction. Many victims and advocates believe that the commissions are perpetrator-led and part of a politically motivated process to protect those in power and neglect the interests and needs of victims. A lack of transparency and the exclusion of civil society and victims’ groups from the selection of commissioners has also led many to distrust and reject the TRC and CIEDP. The government held national consultations in January 2020 prior to the selection of new commissioners. However, the consultations only lasted for a few hours and occurred exclusively at the provincial level—rather than in the districts or villages, where many more victims and their families live. This resulted in widespread criticism that the process was cursory and did not adequately hear or incorporate victims’ perspectives and needs. Another issue plaguing both commissions is that there are no victim and witness protection or other safeguard mechanisms in place. Since many perpetrators remain in high-level positions in the national government, army, and police, many victims are hesitant to speak about the rights violations they experienced as they fear retribution. Several victims who have registered complaints have reported receiving threats from the police and army. There have also been reports that police and army officials have requested that complaints submitted to the TRC and CIEDP be shared with them—presumably in order to allow them to evade investigation or hide evidence. Continuous and ongoing instances of politicisation and political interference in the commissions have further eroded their legitimacy and credibility in the eyes of victims. A 2016 agreement between the leaders of the two largest political parties to preserve the coalition government contained provisions to withdraw investigations and prosecutions for conflict-era offences and grant amnesty to perpetrators.

Read more: A Journey Through the Maoist Heartland

Another challenge facing the commissions is insufficient funding and a lack of autonomy over funds. Each commission’s finances, logistics, and operations are all controlled by that commission’s secretariat, a position which is also filled through government appointment. Similar to the recommendation committee for commissioners, the secretariat position has often been filled by political appointees, exerting additional government interference in the transitional justice process. Many of these appointees lack the expertise and skill to effectively carry out their functions. There have also been challenges in retaining qualified staff for the commissions, further undermining their effectiveness and credibility. 

Recommendations 

We, the victims and survivors of Nepal’s civil conflict, call on Member States participating in Nepal’s third Universal Periodic Review to encourage the Government of Nepal to implement the following recommendations to advance the cause of justice for the families of victims and survivors. While amending the amnesty provisions is important, it must not preclude advancements in other areas of restorative justice for victims and their families, including economic and social justice, formal acknowledgement, and (local) national memorialisation. Thus, even if the government is not willing to undertake all of these reforms, the international community can encourage them to adopt others. Additionally, the federalisation of Nepal’s government presents new opportunities for enhanced local involvement, integration, and ownership of victims and their families in local sociopolitical processes.

1. Amend the Transitional Justice Act in line with the 2015 ruling of Nepal’s Supreme Court and international human rights standards. This includes removing provisions that allow amnesty for perpetrators of serious human rights violations. 
2. Review the appointment process of the transitional justice commissions so as to allow victims and their advocates to participate in all stages of the commissions’ proceedings. The review process should be undertaken by an independent body that is not appointed or influenced by the government. Nepal has a robust civil society, and genuine reforms would allow the commissions to regain the trust and cooperation of victims. Such reforms should include restructuring the composition of the commissions and mandating that an independent body, rather than the government, select members of civil society to be on the recommendation committees. If done correctly, this would ensure wider acceptability and credibility of the commissions.
3. Allocate sufficient resources to the commissions and allow commissioners independent control over their budgets; the government should also allow commissioners to access necessary documentation if necessary to uncover the truth about past events.
4. Establish victim and witness protection and other safeguard mechanisms. This includes keeping complaints confidential and not allowing people outside the commission access to them, except for legal proceedings. Precautions should also be taken to prevent tampering or destruction of evidence.
5. Establish linkages between the commissions and provincial and local levels of government, especially in areas most affected by the conflict. This would enable the commissions to utilise the existing federalism structure and ensure greater victim input and the centering of victims’ needs and priorities. Additionally, this will improve victims’ access to information about the commissions and may help to reestablish the legitimacy of the commissions in the eyes of victims and their families. 
6. Enact legislation that formally recognises the status of enforced disappeared persons during the conflict. This should also extend to allow the legal transfer of assets and land titles to the relatives of the disappeared. Such legislation would also serve as public acknowledgement of harm suffered and could additionally reduce social stigmatisation and exclusion of family members and communities.
7. Amend the 2017 National Criminal (Code) Act so that it complies with international standards. Amendments should include the retroactive application of the Act to past crimes of torture and enforced disappearances; lengthening the statute of limitations to prosecute these crimes; and revising the sentences for convicted perpetrators of enforced disappearance and torture.
8. Ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPED).
9. Implement the “Views” of the UN Human Rights Committee related to enforced disappearances.
10. Extend invitations to the thematic Special Procedures of the UNHRC, including the Working Group on Enforced or Involuntary Disappearances (WGEID); the Special Rapporteur on Torture; the Special Rapporteur on extrajudicial, summary, or arbitrary executions; and the Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence. Additionally, the government should respond to the requests outlined in the March 2020 correspondence by the five Special Rapporteurs.