Nepal: Truth, Reconciliation and Upholding the victims’ cause

As Nepal’s peace process remains hostage to the seemingly unending political impasse and the perpetuating political culture of postponing the agendas, the victims of the decade-long conflict see little hope of justice in the near future.

Nearly three years after the signing of the Comprehensive Peace Accord (CPA) and the proposed truth and reconciliation commission (TRC) appears no near in materializing. At its present stature, the TRC bill proposes a TRC that is marred by political influence in its structure and procedure. This lack of independence from political influence, which permeates to its structure as well as processes, can be argued to have aroused from the political interest of the political parties, prominently the CPN (Maoists) and those holding power during the conflict, as both (the state and the Maoists) were responsible for the war crimes and therefore have inherent interest in the outcome of the TRC.

Definitions of crimes and violations of human rights still remain elusive in the bill, which questions if all the crimes will be accounted for. While the bill itself was drafted without consultations with the stakeholders prominently the victims groups and civil societies, the four regional consultations on it between December 2007 and December 2008 failed to bring it in compliance with international human rights standards, including with regard to independence of the commission, amnesties and increased witness protection. Delay in the formation of TRC along with continued (politically motivated) human rights violations rooted in the civil war has now raised two prime concerns: firstly, the likelihood that the crimes after the CPA will be unaccounted for; secondly, the vanishing trust of the victims that the TRC will actually address their need for justice and reparations. These concerns are in addition to the more controversial provision of amnesty to perpetrators. Here we shall address these concerns, taking into account the extent of their necessity and plausibility in the context of Nepal. Consequence of ‘an extended civil war’ Political impasse and the government’s near indifference towards culminating the widespread culture of impunity has resulted in continuing human rights violations by the Maoists, army and other political parties. Killing cadres affiliated to other parties has been prominent.

The government has remained largely indifferent and incompetent to contain such politically motivated criminal activities, roots of which lie in the civil war. The temporal mandate of the proposed TRC spans through 13 February 1996 to 21 November 2006. So will all war related crimes be accounted for by this timeframe? Not if we consider the aforementioned crimes. In such a scenario therefore where the state is unable to address such politically motivated human rights violations after the CPA, it seems most plausible that the temporal mandate of the proposed TRC be revised to include the post-CPA crimes. Developing trust Having their pledges and peaceful protests resulting only in words of assurance of necessary actions from the government and other concerned authorities, the victims have now resolved to increasingly disruptive methods such as strikes.

The successful functioning of the TRC depends upon the extent to which it can create an atmosphere of trust between the commission itself and the victims and the perpetrators. The longer the government ignores or sidelines the demands and plight of the victims, the more difficult it will be to establish this trust. If the CA election and the heralding of the republican Nepal have raised any hopes, it’s mostly in the belief that the government will feel more responsible and responsive to people’s sufferings. This belief is (or rather was) obviously prominent in the direct victims of the conflict who need immediate relief and justice. The true spirit of the TRC can be accomplished only when the concerned parties are aware of the procedures and mission of the commission. It therefore necessitates that there be public outreach educational campaigns particularly in those regions most affected by the conflict, to educate about the mission of the TRC, the requirements and expectations from the victims and perpetrators. Of particular importance in this regard is to make the victims aware of the terms and conditions pertaining to amnesty to perpetrators. The big question TRC’s proponents argue that its focus on victims as opposed to standard trials which centers on individual perpetrators sets an ideal platform for the victims to tell their stories. By granting amnesty to perpetrators, on the other hand, it makes itself less objectionable to perpetrators of conflict, who are believed to more readily disclose facts about the crimes. The result, its advocates posit, is the full account of the truth about the crimes in addition to the benefits of great healing effect telling one’s story is believed to possess. And by allowing a yet benign platform for the perpetrator (s) to meet his or her victim (s) and seek forgiveness, it allows a viable precursor to overall reconciliation in the society. Whether truth without justice helps achieve reconciliation is arguably the biggest question posed by the critics of TRCs and human rights activists.

The TRC bill’s stance that any crime (including “gross violation of human rights” and “crimes against humanity”) committed as per one’s duty or with “political motive” is liable to get amnesty tends to generalize and undermine the nature of crimes. And that the government has the last say in granting amnesty to perpetrator augments the gravity of the issue: Given the pervasive culture of impunity and the inseparable political influence on TRC’s processes, the likelihood that all the violations of human rights will be labeled as part of the perpetrators’ duties cannot be ruled out. Amnesty, in such a case, merely becomes a synonym to impunity, not an assisting tool for reconciliation as it is projected to be. TRC in essence is primarily to address the needs of the victims. Detailed consultations with the victims groups and civil societies therefore become a logical necessity in framing an effective mandate and processes of the TRC. Not only would such consultations help gather valuable perspectives about victims’ expectations in terms of reparations and justice, but also allow serious topics like amnesty be discussed. This clearly did not happen while drafting Nepal’s TRC bill. A survey conducted in March 2008 by ICTJ and Advocacy Forum on 811 victims of conflict in 17 districts most affected by the conflict revealed that over 75 percent opposed the idea of amnesty for the perpetrators. True that a single survey might not reflect the opinions of the entire victims, but we also cannot ignore the fact that increasing lawlessness and impunity has augmented their need for justice more than ever. And indeed, the TRC should be a hallmark to ending the long overdue culture of impunity that has infected Nepalese society. But that the TRC bill is devoid of any statement ensuring that the commission’s proceedings will be followed by necessary judicial proceedings means that even crimes under international law such as genocide, crimes against humanity, war crimes, extrajudicial killings, enforced disappearances, and torture are liable to get amnesty. The inability of subsequent governments to ratify UN Convention on Enforced Disappearance and Rome Statute of International Criminal Court (ICC), which would necessitate that TRC’s proceedings are in tandem with international standards, despite numerous appeals from the rights organizations, shows the lack of political will in delivering justice to the victims.

The beginning

The first priority now is to amend the flaws in the TRC bill. Above all, it should be amended to ensure that the TRC is free from any form of political influence and that its tasks be assigned solely to independent bodies and individual experts keen at upholding human rights. The biggest challenge of TRC lies in ensuring that individual need for justice does not affect the societal reconciliation and vice versa. However, reconciliation cannot be achieved through coercion or by deluding the victims into believing that they are bound to forgive the perpetrators. Only when the victims and perpetrators are aware of the concept of reconciliation can its effectiveness achieved. This depends largely on the level of trust developed between the commission, the victims and perpetrators and the notion of amnesty applied.

Posted on : 2009-08-27 06:16:20

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