The struggle for Transitional Justice

Nepal is engaged in the search for post-conflict reconciliation even while ensuring accountability for serious crimes

Nepal’s peace process cannot be considered successful without completing the final step of dealing with conflict era human rights violations through the process known as transitional justice.

Over the past decade, the defining mood among the victims of conflict has been that of disappointment and frustration, while among the other stakeholders there has been distrust, doubt and insecurity.

Amidst the extended disquiet, however, one now discerns a consensus emerging on the way forward, dictated by practical considerations even as society achieves some political stability through elections.

This emerging consensus is a result of the long struggle of the victims, several court decisions, and watchdogging by the international community. There has also been realisation among political parties, including the Maoists, as well as the security forces that the future is not secure without transitional justice that respects human rights and the decisions of the Supreme Court.

Key issues needing a sorting out at this stage refer to amnesty vis-à-vis prosecution of cases of extreme human rights abuse, ‘truth telling’, reparation and the matter of running court cases. A legislative framework is fundamental to address these issues, which will require the amendment on the relevant law.

There is now general willingness to follow the principle laid out in the Supreme Court’s landmark decision in the case brought by Suman Adhikari in 2015, stating that amnesty cannot be allowed in four categories of crimes – extra judicial killing, enforced disappearance, torture, as well as rape and other sexual offences.

The newly adopted Criminal Code of Nepal criminalises torture and enforced disappearance, but there is need to lift the statute of limitations on cases filed.

There is emerging consensus on not to change the office-holders in the Disappearance Commission and the Truth and Reconciliation Commission. On the other hand, the new arrangement being considered is for the commissions to recommend cases to the Attorney General, who will prosecute at a special court to be established under existing law.

Despite the fervent desire of the victims, it may be ambitious to prosecute too many cases, given the lapse of time and paucity of legally admissible evidence. However, there is no denying that emblematic cases reflecting conflict-era excess with adequate evidence for prosecution have to be taken up.

Such prosecutions are vital for the sake of deterrence in the event of future conflicts. At the same time, based on successful transitional justice efforts elsewhere and particularly in Latin America, a liberal attitude may be explored by truncating the incarceration period during sentencing. Under the international human rights law, every country has the obligation to investigate and prosecute conflict era excesses, but sentencing is a sovereign subject.

While prosecutions must be a requirement, political pragmatism and the need for society to ‘move on’ would also have to be considered.

There is a need to adjust the mandate of the Disappearance Commission and the T&R Commission in order to expand truth-seeking procedures.Perpetrators of serious offences who come forward to reveal the truth would get some leniency in sentencing. However, we must be careful not to delink sentencing completely from the ‘satisfaction’ of victims.

The existing law does not consider reparation as a right of victims, and this lacuna should be removed. The two commissions should also be given the mandate to provide interim relief and an adequate budget to complete the reconciliation agenda.

To move Nepal’s transitional justice process towards conclusion, it is recommended that the two commissions be buttressed with financial and human resources from the Government and the international community. The National Human Rights Commission, as the leading constitutional body in the field, must provide technical assistance to the commissions and coordinate the international support they may need.

As far as the running court cases of the conflict era are concerned, there is need for creative thinking. There are two categories of such cases: a) the few which have been filed by the victims themselves and, b) those filed by the police against Maoist cadres and leaders.

The Attorney General must be given the power to choose the cases to be transferred to the special court based on the interest of the victims and attached gravity. The remaining running cases may be transferred to the two commissions for further investigation, to be recommended for prosecution if serious violations are identified.

There have been efforts to link Nepal’s transitional justice process to crimes against humanity, war crimes and even genocide. While there is no doubt that Nepal has seen serious violation of human rights during the conflict, it is not clear if the listed abuse fall under such categories. Given that these crimes are not criminalised in the Criminal Code, ambitious efforts to achieve a higher threshold of justice may impede addressing serious human rights violations.

Overall, there is need for a realistic approach in taking up prosecutions, as the parties to the conflict have embraced peace and constitutionalism, and also reiterated their commitment to human rights. On the other hand, we cannot ignore international standards, including on the use of child soldiers in conflict, which the Security Council itself is engaged with.

The normative framework for transitional justice is crystallising simultaneously in different parts of the world in post-conflict contexts. From within South Asia one can hope that Nepal, with all the delays and disappointments thus far, will show the way and contribute to the global development of the principles of transitional justice.

Hari Phuyal is a lawyer and former Attorney General.

hariphuyal@yahoo.com.

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