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Interview | What is hindering Nepal’s transitional justice process? What can be the way forward?

‘TRC and CIEDP are defunct for more than a year in the absence of commissioners and adequate legislation. This is troubling.’

Kathmandu: Eighteen years after the Comprehensive Peace Agreement (CPA), which paved the way for ending the decade-long armed conflict (1996-2006) in Nepal, the issue of transitional justice still remains unresolved. What is the major stumbling block to resolving the transitional justice (TJ) process in Nepal? What may be the possible way out? The DMN News talked to Chiranjibi Bhandari, an assistant Professor at the Department of Conflict, Peace, and Development Studies at Tribhuvan University, who in the past served as a Section Officer, especially in the Supervision, Integration and Rehabilitation of Maoist Army Combatants in Nepal along with social reintegration phase. He has more than a decade of experience in various peace-building initiatives and research work led by the government of Nepal, civil society actors, and the university. He has also contributed a significant number of research articles and book chapters in the areas of conflict management, national security, transitional justice and post-conflict peacebuilding in Nepal. Excerpts of the interview:

How is your overall perception on the Transitional Justice process in Nepal? 

There is little progress on the transitional justice process. The process itself is sluggish and uncertain.  But it doesn’t mean that nothing has happened in the last 18 years. The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Ordinance was issued in 2013. The TRC Act was passed in 2014 and the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) formed in 2015. These two commissions—TRC and CIEDP—have made some progress. The report published by CIEDP shows that the commission registered a total of 3,288 complaints. Out of that 2,515 of them are currently awaiting investigation. Furthermore, 3,995 family members of 1,321 disappeared persons have received victim identification cards. The CIEDP has recommended that the government provide relief to the families of 551 missing persons who have not yet received assistance.

‘There is a fear among high-profile leaders from conflicting parties that they could be held accountable for the atrocities committed during the armed conflict.’ 

In the case of TRC, 63,718 complaints have been registered, covering issues such as physical and mental torture, property damage, murder, displacement, injury, kidnapping, rape and sexual violence. Only about 3700 complaints have undergone preliminary investigation.  A positive move is the formation of a sub-committee under the Human Rights Committee of the Federal Parliament and extensive discussion of the Transitional Justice Bill, which has submitted a report to the Committee, which, if adopted, could address most of the key concerns raised.  However, these two commissions are vacant for nearly two years in the absence of commissioners and adequate legislation. This is troubling.

What are the concerns of political parties regarding the TJ bill? What are their points of contention?

The Parliamentary Committee or House Panel is currently facing a challenging situation as parties involved in a conflict are unable to reach a consensus on four key points. These points include deciding whether all deaths beyond those that occurred during the conflict should be classified as grave violations of human rights or only arbitrary killings. Another point of contention is how to address the indirect impact of war on individuals. Additionally, parties differ in their approaches to dealing with victims of human rights violations who refuse to reconcile. Lastly, legislators from different parties are at odds on the extent of sentence reduction for offenders who assist with the inquiry. While it is agreed that sentence reduction is possible, the specific amount is still up for debate.

 What are the main reasons for uncertainties of the TJ process? 

The genesis of the formation process of the TRC Act itself was not a very obvious and proactive step, as the Act was a consequence of a response to a widespread call for accountability on the part of the State to address human rights violations. It was created on the pressure of conflict victims, national and international human rights organizations.

The transitional justice process in Nepal has remained uncertain for nearly 18 years even after the Comprehensive Peace Accord 2006 due to various reasons, including lack of political will among major political parties, inadequate legislation and unclear understanding of the course of action. Differences among conflict victims based on ideology and understanding, late formation of TRC and CIEDP, and insufficient mandates of these commissions have also contributed to delays in the justice process. Moreover, insufficient technical expertise and resources, concerns over the capability of the commissioners, and ambiguity in the TJ bill have further complicated the realization of transitional justice in the country. 

Why do you think the lack of political will is a major stumbling block to the TJ process?

The delay in the transitional justice (TJ) process is often attributed to the concept of ‘consensus politics’ which has allowed political parties to avoid taking responsibility for their actions. Also, the formulation of TRC and CIEDP is perceived as top-down, with little to no consultation with the conflict survivors. The qualifications and competencies of the commissioners have also been questioned by the victims, who feel that they are more accountable to the government and political parties and motivated to ‘stay on the job’ than to address the victims’ agenda. Also, in the perspective of conflict victims and other stakeholders, the role of the both commissions have been quite questionable. 

In your view, why are political leaders often reluctant to take the TJ process to a logical conclusion? 

I might be wrong, but a pattern of fear among the top political leadership regarding the transitional justice (TJ) process has been observed since the initial days of the peace process. The uneasiness stems from the possibility of the process leading to some of the leaders of the previous armed forces and then leadership of the government facing the consequences of their actions. This fear is particularly prevalent among high-profile leaders from conflicting parties, who are concerned that they could be held accountable for the atrocities committed during the armed conflict. The narrative of prosecuting the leaders in The Hague court is sometimes highlighted in TJ campaigns, and this message is often enlarged in Nepali media, which further exacerbates the fear syndrome. So, political leadership should be able to come out from the fear syndrome and need to be serious enough on conflict survivors’ concerns and the country’s long-standing problem.

Based on your extensive engagement in the peace process and frequent visit to districts and interaction with conflict victims, what are your observations about the overall status of conflict victims? What do they actually say? 

All types of victims share similar views regarding the truth, justice, institutional reform and memorialization, however the reparation needs of conflict survivors are completely case specific and different based on their everyday experiences and realities. According to the victims at the grassroots level, one of the major hurdles is about bringing all the important stakeholders together to address the significant issues that still persist in the effort to combat impunity, provide sufficient reparations, promote reconciliation, rectify flaws in the previous government relief measures and dignified identity card for victims, and set up a criminal investigation mechanism for the perpetrators of gross human rights violations. One of the unique aspects observed is that all types of victims are ready to demonstrate flexibility for logical end. This indicates that victims are highly concerned with truth seeking, justice, memorialization and willing to push forward a more forward-looking approach in transitional justice.

What do you think are the existing needs of conflict victims? 

It is important to understand that conflict victims are not a homogenous group and they have different needs depending on their specific cases. It is case specific and should be asked with the leaders of conflict victims networks formed at national, district and local level and for specific needs it is required to ask conflict victims on an individual basis. However, based on my interactions with conflict victims over the past few years, I’ve found that the majority of them expressed their priorities for truth-seeking, justice, reconciliation, and a guarantee of non-recurrence along with wide range of reparation needs to fulfill the dignity of conflict victims and ensure their quality of life.

‘Conflict victims are willing to take a more forward-looking approach to the resolution of conflict and transitional justice process.’

In addition, they also have other reparation needs such as scholarships for their children’s higher education, health insurance and healthcare facilities, livelihood opportunities, vocational training, small-business grants, psychosocial support, humanitarian assistance, skills-based employment, memorials, museum parks, and statues, among other things. However, it is often overlooked that religious rites and rituals are an important aspect of victims’ needs, since  they are mostly associated with the socio-cultural concept of inner peace or mukti and which should be given sincere consideration.

What are the shifts and changes in the conflict victims’ movement? 

Over time, individuals who were once considered as victims of conflicts have become empowered actors. Their transformation has been attributed to strategic advocacy, victims’ mobilization, and engagement with a wide range of stakeholders; government, political parties, commissions, civil society organizations at national and international level. By amplifying their voices, challenging the existing norms, and collaborating with civil society organizations, human rights advocates, and international bodies, victims are launching their struggles for justice and accountability and are able to exert continued pressure on political parties and government entities.

The victims have been proactive in their involvement, which is evident that they prepared the collective Victims’ Charter in 2018 and periodic appeals, concerns and demand letters presented before top executive leadership such as the Prime Minister and Human Rights Commission. A strong agency of conflict victims has been built over the years. 

Several other countries in the world were able to resolve the TJ process. What can we learn from international experience?

Transitional justice mechanisms around the world are not completely free from flaws, despite some countries being celebrated for their successful models. Complex historical legacies, ongoing conflicts, and political pressures can pose challenges even for comparatively successful models. To be successful, transitional justice processes require sustained commitment, adequate resources, and a victim-centric approach.

Different countries adopt a variety of judicial and non-judicial mechanisms, considering their specific context and adopting a victim-centric approach. Successful mechanisms generally focus on traditional and community-led reconciliation methods, uncovering the truth, holding perpetrators accountable, providing reparation, justice, healing and reconciliation for victims, and transforming unequal social and political structures.

Finally, what can be the way forward for Nepal’s transitional justice process? 

Transitional justice process is the national responsibility of all the actors and stakeholders of the peace process. It is not only the concerns of conflict survivors and the government. The timely conclusion of the transitional justice process is of paramount importance for any nation. It not only helps in addressing the needs of truth, justice, reparation, institutional reform and memorialization, it also strengthens the rule of law and strengthens social cohesion, harmony, credibility of state institutions, and goodwill of nations at national and international level.

‘It is essential for Nepal to develop its own victim-centric, unique model for transitional justice in line with the directives of the Supreme Court, international human rights and humanitarian law, victims’ concerns, and the overall spirit of the peace process.’ 

In the case of Nepal, it is imperative that the transitional justice mechanism should prioritize to focus with a futuristic perspective focusing on all components of transitional justice; truth, justice, reparation needs of the conflict survivors along with institutional reform and guarantee of non-occurrence.  The futuristic approach will not only help in providing justice to the victims but also helps for dignified and quality life. It is essential for Nepal to develop its own pragmatic victim-centric, homegrown model for transitional justice, which should be aligned with directives of the Supreme Court, international human rights and humanitarian law, victims’ concerns, and the overall spirit of the peace process. By doing so, Nepal can boost the country’s peace loving image and set an example for other countries on-going in a post conflict situation.