Fear of what happens next in transitional justice divides the victims

The terms for the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) expire on February 9. In their four years of operation, neither have concluded investigations for even one of the thousands of complaints made by victims about the atrocities of the Maoist war. The commissions are making preparations to hand over all their records, dossiers, and progress reports to the government.

“Handing over conflict dossiers prepared by legitimate transitional justice bodies to the government is unthinkable,” said human rights lawyer Om Aryal, who has been working on transitional justice for over a decade. “It invites a crisis of legitimacy to the progress made in the transitional justice process. Besides, there are issues of confidentiality surrounding the documents and concerns about the safety of individuals.”

CIEDP has been conducting detailed investigations on 2,100 cases and claims to have completed 80 percent of its mandated task, while TRC has gone through 3,000 of 61,000 registered complaints. TRC had set up temporary bases in seven provinces to expedite investigations, which was largely unsuccessful due to the lack of staff and budget. Nevertheless, while the commissions were unable to conclude investigations, they took statements from victims and witnesses, and many victims named perpetrators in their statements. The commissions have also collected reports, complaints, and case studies from various human rights organizations as well as quasi-judicial bodies.

Human rights defenders believe that entrusting the government led by the former rebel party to safeguard highly sensitive information that they themselves might be implicated in is unwise. The evidence against people in power and state agencies could be destroyed, further minimizing the chances of victims getting justice.

The dissolution of the commissions without alternative arrangements in place will create legal, logistical as well as administrative uncertainty. Members from the commissions told the Record that they would hand over the dossiers to the Law Ministry. This does not ensure that any newly-appointed future commissions will take up the investigations from where they have been left off, which means that the entire transitional justice process might go back to square one.

“There is no provision to form a new commission that can continue the work existing commissions have already done according to Clause 40 of the Transitional Justice Act ” said Govinda Bandi, transitional justice expert. “The commissions have already conducted preliminary investigation into the complaints registered with them. So, the government should either extend the term of the commissions once again for a certain period of time or amend Clause 40 of the act to proceed with the ongoing transitional justice process,” said Bandi. Besides, the government has to amend provisions of the Act to adhere to several so far unimplemented Supreme Court verdicts. The lack of clarity about what will happen moving forward has alarmed conflict victims and human rights activists.

To allay the legal ambiguities relating to the process, the government had drafted an amendment bill in June 2018 that did not fully adhere to the Supreme Court verdicts and international standards on transitional justice. One month later, the then law minister was forced to resign from his post, and the new law minister, Bhanu Bhakta Dhakal, claimed that his ministry would draft a new bill. A new bill has not been made public so far.

Fissures in the victim community

During this crucial time, conflict victims and civil society have been divided. This has further encouraged the government to delay decision-making with regards to the fate of transitional justice mechanisms.

The conflict within the victim community and civil society came to the fore after a consultation meeting with civil society members organized by Conflict Victims Common Platform (CVCP) in Kathmandu on November 16. During the consultation, CVCP presented an eight-point draft charter with recommendations from conflict victims which included a provision for a “credible high-level mechanism” to conclude the transitional justice process.

Rights advocates and several other conflict victims objected to this provision, arguing that the mechanism would ultimately grant amnesty to perpetrators.

Sushil Pyakurel, Geja Sharma Wagle and Tika Dhakal, with whom the current leadership of CVCP is working under funding from the Swiss government, tried to address this concern during the meeting. They argued that since transitional justice is a political process, a ‘holistic approach’ should be taken instead of appeals for retributive justice. They said that the proposed mechanism would be a body that would formulate national policies on truth seeking, reparation and reconciliation.

However, a section of human rights lawyers and conflict victims were not convinced by the idea of this mechanism. They said that the charter neglected the agenda of justice and the proposed process would ultimately support perpetrators of war crimes. A group led by Gangamaya Adhikari, Gopal Bahadur Sah, Om Aryal among others issued a statement opposing provisions of the draft charter. The group appealed to civil society, human rights activists and the victim community to stand against the conspiracy to provide immunity to perpetrators of war crimes and urged the international community (including the United Nations) to ensure justice for war victims.

The idea of this “high-level mechanism” has led to a formal split in the victim community, with a group of victims led by Ram Bhandari announcing a separate organization called Conflict Victims’ National Alliance for Justice (CVNAJ) on November 26. The group accused the CVCP leadership of compromising the justice delivery process. They claimed the proposed “high level mechanism” was a ploy to whitewash crimes committed during the conflict period. Individual members of the opposition group are formerly prominent CVCP leaders, which makes the split all the more significant.

CVCP President Bhagiram Chaudhary said, “we realized the need of a ‘high level mechanism’ for two main reasons: to ensure participation of stakeholders in the ongoing transitional justice process, and to forge a political consensus and commitment to transitional justice.”  He further stated, “Justice is our goal. We believe that the transitional justice process will never reach a conclusion without political consensus. Transitional justice is also a political process.”

The “high level mechanism” has been envisioned as a body comprising of representatives from political parties, the victim community, the government, and civil society. Chaudhary said government representatives would also represent security agencies.

Dissenters like Aryal and Bhandari argue that a political mechanism is not widely acceptable.  Any commission that falls under a political mechanism will have no credibility. There are no instances of such mechanisms being set up to monitor transitional justice anywhere in the world.  

“If there is no uniform process in transitional justice process, why can’t Nepal adopt its own transitional justice model?” said Chaudhary.

Advocate Aryal argued that there should be two core components in the process in order for it to be legitimate and acceptable universally—the commissions should be established as per the Paris Principles and penal law. “This is to say that the government is willing and capable to investigate crime against humanity. A political mechanism can never be a replacement for a commission.”

There is a general lack of trust, amongst both conflict victims and members of civil society, in the integrity of TJ mechanisms in the country. The new process, initiated by the Pyakurel team, is under deep suspicion even before it has formally begun. Whether the government delivers on its obligations to provide “truth, justice, reparations and institutional reform” as it promised in the CPA and as it is bound to under international law remains to be seen.

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