“How can we argue that those victims whose loved ones disappeared should simply forget?”

Interview with human rights activist Mandira Sharma

The Dahal Government has decided to fast-track the controversial Transitional Justice bill drafted by Govinda Prasad Sharma Koirala ‘Bandi’ through the parliament. Conflict victims and human rights defenders have raised their voice against the bill which they say may facilitate impunity. Nepali Times spoke with Mandira Sharma, human rights activist, and Senior International Legal adviser at the International Commission of Jurists. Excerpts from the interview:

Nepali Times: The conflict victims and human rights defenders (HRDs) have come out against the bill presented by the Dahal Government to Parliament, in a statement signed by 42 organisations. What are the main points of disagreement?

Mandira Sharma: The main concern of victims and civil society is that by having certain provisions in the bill and omitting others, the bill is likely to facilitate de-facto amnesty for all those committing gross violations of human rights and international crimes.  It provides different protection for victims, depending on who the perpetrators are. It provides differing treatment for the same nature of crimes, depending on who the perpetrators are.  

As the bill provides the Truth and Reconciliation Commission (TRC)with several competing mandates, victims and human rights defenders also have doubts that the TRC can deliver on these mandates without having an adequate legal framework, which the bill fails to provide.

Is the fear that the bill is inadequate or that it will be misused? Is the fear legitimate or just speculation? 

I think some of the fears of victims and HRDs are legitimate. It is important to stress that transitional justice (TJ) is not only about bringing perpetrators to justice, it is also about opening the process to help victims and society know what happened in the past so that we can take measures to correct them to ensure it is not repeated. It is also a process to address the root causes of conflict. However, considering the context of impunity and deep sense of inequality in the society, people are also trying to see more carefully how this TJ process helps to address the extent of impunity to restore rule of law in the country. There are so many aspects in the bill requiring clarity, but let me give you some examples which have been raised by victims and HRDs as to how this bill may facilitate impunity. 

Firstly, the bill says human rights violations include murder, beating and mutilation, abduction, destruction of private and public property, sexual violence, arson, illegal arrest and detention, forced displacement, etc. In all these violations, perpetrators will get amnesty. Some of these violations if committed in a widespread or systematic manner are of the kind that would amount to crimes against humanity and/or war crimes under international law. However, war crimes and crimes against humanity are neither included in the bill nor in any other legislation, such as the Penal Code. Although certain conditions are required for alleged perpetrators to meet to get amnesty - such as disclosure of truth, willingness to apologise to victims and to pay compensation etc. - the bill has no provision to allow those not meeting these conditions to be charged and held accountable. They enjoy de facto blanket amnesty. Thus, in practice, a clear possibility exists under the new bill to provide amnesty (de facto) for those involved in war crimes and crimes against humanity.

Secondly, the bill states that the sentencing will be done as per the ‘existing law’ for some violations listed as serious violations of human rights. This includes ‘murder with cruelty’, cruel and inhuman torture, disappearances, and rape.  The Penal Code is the existing law that would provide punishment for these crimes. However, the Penal Code only came into force in 2018 and prevents retroactive application. The Penal Code also has a provision of limitations in reporting cases. For example, reporting rape has a limitation of up to 3 years, depending on who the victim is, from the time of occurrence. Thus, victims and civil society organisations were demanding that the Government either include a provision in the bill stating that the non-retroactive effect of law, and statutory limitation in existing laws, will not apply to the cases under the jurisdiction of the Special Court or would amend the Penal Code to say that these provisions will not apply to the crimes committed during the armed conflict. However, neither of these proposed options has been taken up. 

Thirdly, the definition of certain crimes is narrow in the Penal Code and would in essence provide grounds for different treatment for the same crime, depending on who the perpetrator is. For example, torture in the Penal Code is narrowly defined and does not include pain and suffering inflicted by non-state actors. Thus, the end result of the provision of this bill is torture committed by the state security forces will be tried in the Special Court but torture committed by the Maoist will ipso facto enjoy amnesty.

Fourthly, many violations require investigation under international law outside the ambit of the TRC and the Special Court. For example, the bill states that human rights violations or serious violations of human rights will come to the jurisdiction of the TJ mechanisms only if they are committed against an ‘unarmed civilian or group’, and if they are committed in a ‘systematic’ manner. These requirements would then mean, for example, that rape committed against Maoist combatants would be outside the ambit of the TJ mechanisms.

Issues like these, which victims and HRDs had raised, requiring careful detailing, sadly have not been addressed in the bill presented by the Government. 

Read also: Nepal’s Transitional Justice and the West’s recalibration, Kanak Mani Dixit

A bill was proposed by Govinda Sharma Koirala (‘Bandi’) as minister in the previous Deuba Government but was withdrawn after vigorous protests. Has the Government not made adjustments to address the concerns of conflict victims and rights defenders?

I have noticed four changes made to the bill from the one tabled last time. The text now includes the provision of appeal against the decisions of the Special Court, which was absent in the previous bill. It has extended the time for the public prosecutor to decide whether or not to prosecute the cases recommended by the TRC from six months to a year. It has also removed one positive provision in the previous bill which allowed the suspension of public officials from their post once the charge sheet is filed against them in the Special Court. Apart from these, no changes have been made to last year’s bill, and there has been neglect of the demands and concerns of conflict victims and civil society.

Has Govinda Sharma Koirala ‘Bandi’, who attended the UN Human Rights Council session in Geneva as human rights and peace Adviser to PM Dahal, consulted with victims and HRDs? Why do you think that the Government hurried this bill into Parliament? 

No, neither he nor any government agency has consulted conflict victims and HRDs on this bill. As you know, many victim representatives and HRDs supported the consultations the last time, when Bandi was the Minister and promised to bring a fair and just document in consultation with all stakeholders. However, that bill was finalized without respecting issues that victims and HRDs had raised during the consultations, and so the victims and HRDs felt betrayed. It seems the government wants to  ‘fast track’ it through Parliament using the majority that the government commands, but we need to understand that the new Parliament does not even have committees yet to provide full and transparent debate to discuss many of these provisions in the bill.

Do you see a ploy to show certain token adjustments while maintaining the overall perpetrator-friendly nature of the bill?

Overall, this bill seems to be designed to give priority to the demands of perpetrators rather than the victims. This process requires honest efforts from all actors to make it possible to have an acceptable framework for TJ. As of today, the bill does not provide clarity on the overall architecture of the TJ process. It has been long argued that the architecture should allow all major components of the TJ (truth-seeking, reparation, justice, institutional reform) to work in tandem. We know that it is not possible to disclose the truth in every case, prosecute every single case, or provide reparation to every single victim. Different components working in tandem could leverage and complement each other to address the limitation each creates. If designed properly, the justice component could be leveraged for the truth, reparation, and reforms. 

Although the bill looks like it is trying to adopt this model by having the provision of leniency in sentencing, it fails to link this sufficiently to other components of TJ to leverage it for truth, reparation, and reforms. On the contrary, it ensures impunity to those not supporting the TJ process by offering de facto amnesty.  For example, the bill contains a provision that if anyone has been involved in murder or mutilation who wants to support the TJ process has to pay compensation, make a confession and offer apologies to victims and can then get a formal amnesty.  However, those not supporting the process would get de facto blanket amnesty as nothing can be done to them. This does not promote those alleged perpetrators even to engage in the amnesty process.

Similarly, the bill empowers the TRC to conduct an inquiry for truth-seeking while at the same time being in control of an investigation for prosecution. How the TRC will balance its truth-seeking mandate, where it might need the power to offer confidentiality and protection even to alleged perpetrators, and its mandate to do an investigation for the purpose of prosecution is not clear. Doing an investigation for the purpose of prosecution requires different skills and standards than those meant to unpack the truth. It is important to note that under the Constitution and under international law, the accused also have certain rights that need to be respected, and that flouting those rights would not only undermine the right of the accused, making the trial unfair and rendering a sham trial, but ultimately letting those involved in serious violations go scot-free.

It seems that the bill is designed to please diplomats and international observers while neglecting the voice of Nepali rights defenders and the conflict victims. Is the international community so aloof and disinterested that they may be taken in by the ploy?

As someone who has been following Nepal’s TJ process very closely since the beginning, I have seen varying degrees of interest from international diplomats. In the past, I have been privy to a coordinated strategy of the international community, which contributed significantly to pave the grounds for setting up the TJ mechanisms with a strong legal foundation, one that does not undermine international law. Although I am not too sure such a coordinated strategy exists in Nepal’s TJ effort today, I have to say that the international community is not uninformed. 

In 2014, the UN Office of the High Commissioner for Human Rights (UNOHCHR) issued a technical note. It was instrumental in providing a nuanced yet principled international law position that should guide the design of the TJ process. It was important that such a note came from UNOHCHR, as a non-partisan entity in the existing atmosphere which has been highly polarised and politicised. The minimum standards that the OHCHR technical note has provided, remains and should continue to represent the bottom line for the international community.

Read also: Delay, dilute, deny, Shristi Karki

It is said that the bill is meant to let perpetrators off the hook by creating dual standards for the same crime, such as murder, rape, abduction and torture. Such differentiations seem to be a clear attempt to let perpetrators off the hook, whether they are army, police personnel, or Maoist cadre and commanders.

The TJ process creates more harm than good if we have dual standards and undermine basic tenets of rule of law. There are some provisions in the bill that make one argue that the bill may cause more harm than good. For example, the bill provides space for having different applications of law depending on who the perpetrators are. 

We also need to understand another dimension of the matter. The formation of the Special Court, not allowing the regular court to deal with these issues will not get legitimacy unless the Special Court functions independently and is seen as independent. It is also important to note here that special mechanisms and courts are important considering the special nature of crimes, requiring special skills and expertise to investigate and prosecute - not because those serious crimes are special but because they were committed by special people in power.

Why are we seeing much less engagement by Western diplomats and international INGOs who have been active in the past to correct the transitional justice process and prevent it from being hijacked by the political forces within the country?

The OHCHR’s technical note provides the bottom line for the international community. It is true we have not seen a clear and united public message, that no legitimate clean chit can be provided unless there is an internationally legitimate TJ process. We are left with the hope that perhaps things are done through diplomatic channels, behind closed doors. But we have no way of confirming that. As we have seen in the past, public messages from the international players are important to clarify misunderstandings among victims and HRDs. And this is such a time.

It is vitally important for the countries believing in human rights, rule of law, and liberal values to use the leverage at their disposal to create an environment for a credible TJ process in Nepal that does not undermine victims’ rights to an effective remedy. This is important not only for human rights and the rule of law in Nepal but also as a benchmark for future TJ processes around the world. Strategic use of vetting of the UN peacekeepers, visa-vetting, and universal jurisdiction cases are leveraged that can be used, to name a few. 

How unique is the TJ process in Nepal, and are we in a position to show the world a just and successful process if the process ends properly? In which case, would Nepal be an example to the rest of South Asia and the world?

Every context of conflict is unique. So, the process developed to address the legacies of the conflict could be unique. However, we are in a unique position. We have the opportunity to learn from the experiences of so many different countries and contexts. We should not make the same mistakes other countries have already made. Understanding of transitional justice has widened and deepened in recent years, and Nepal’s experience is also part of this legacy. As explained in the technical note of the OHCHR and by the jurisprudence of Nepal’s own Supreme Court, the minimum standards for the TJ process have been set. Nepal has come far, the Government has prepared a bill, the conflict victims are keeping the issue alive, and the political parties and civil society are engaged. If we handle this properly, we can certainly set some precedence for the region as well.

It had been said that the unity of conflict victims, between victims of the state and victims of Maoists, which was so unique internationally has now been compromised and that the community has become divided. How true is this?

We all have put so much effort to create an environment and opportunities for victims of all sides to come to a common platform. We faced tremendous challenges when we first started having this conversation when victims from the state side and Maoist side would consider each other as enemies. One would call the other either the mercenary of the repressive state or a terrorist. However, as victims started to come as a united force calling for truth, justice, and reparation, efforts were made and are being made on the political front to weaken the group and force the victims apart. This requires vigilance on the part of the victim community as a whole. Unity among victims in all situations may not be possible as they come from different ideological and societal backgrounds, and they may also have different political affiliations, aspirations and ambitions. However, as we have seen in recent times, they have been articulating their demands persistently and with exemplary unity. 

Read also: Transitional injustice in Nepal, Kanak Mani Dixit

What should conflict victims and rights defenders do if the Government does not make the rectification demanded by them? Should they reject the bill or live with whatever is passed by Parliament, where the present government commands a majority?

I do not believe that the Government can pass the bill as it is. We will be back to square one, back to 2014 when the UN/OHCHR had been constrained to issue its technical note. There is speculation that the way the Government rushed to register this bill is to avoid discussion on the bill in the parliamentary committee. This was what had happened in 2014 as well, when top leaders made the deal behind the door, and rushed to pass the Act, which faced legal challenges and pushed us seven years behind. We cannot make the same mistake again. The issue here is not just the amendment of the TJ law, but amendment through a legitimate process that provides opportunities to everyone, particularly conflict victims, to own the process. As the TJ mechanisms have inherent limitations in addressing all grievances of victims, an inclusive process helps to fill some of those limitations and gaps. 

Having said that, I am not arguing that we can delay this process for too long. We have seen political parties using this as a bargaining chip and wanting to prolong the process. Victims have been suffering and waiting for justice for the last two decades and more. The country is also suffering. Our failure to address impunity has caused political instability, lack of rule of law, weakening of public institutions, valorisation of violence, and letting a handful of people create a political syndicate with the goal of capturing state power. The interest and confidence of the public in political parties and their leaders are severely compromised and threaten multiparty democracy itself.

Thus, the law has to be amended as soon as possible adopting a consultative process including a detailed discussion in Parliament. This is where the international community has to be vigilant as well. I am hopeful that it is possible to find ways to design this process that addresses the need and aspirations of all actors, without undermining international law. What we need are honest efforts from the Government and the political forces. Their belief in this process is also important. Willingness of the international community, victims, and civil society to continue engagement in order to find acceptable solutions is also a must.

How do you respond to those who say that it is time for Nepal to put the conflict behind it and that the TJ process must be ended even with significant compromises, so that full attention can be given to nation-building?

We have been hearing this since way back when the political parties signed the Comprehensive Peace Agreement. Indeed, ‘prevarication’ is the word that defines what the state has been doing for the last 16 years. And so we need to ask a series of questions of the political players who have been promoting impunity and undermining the due process by sabotaging the TJ process thus far.

Has the country progressed by doing this? Does the law treat everyone equally now? Is everyone equal before the law? Are public institutions accountable to the people and the Constitution? Can a citizen get service from a public institution without having ‘afno manche’ in the system? Can children of dalit or poor marginalised backgrounds get jobs based on merit? Is our society more inclusive? Does the police investigate crimes professionally even if the powerful are the perpetrators? Is the judiciary respected? When it comes to the economy, is there predictability in investment? Has our GDP increased? Are we able to address corruption? Have we democratised political institutions and political parties? Where are we in nation-building?

A negative response to all those indicators shows why we need to address the legacies of the past and restore rule of law as we cannot move forward toward the positive indicators on the foundation based on violence, impunity, discrimination, and corruption.

How can we argue that those victims whose loved ones disappeared and the families waiting every single moment for their return, who suffer in pain and anguish for not knowing the truth should simply forget? How do we ask a survivor of rape to forget the trauma? How can a son forced to witness the brutal murder of his father forget what he saw? How can a family, who was forced to leave everything behind and leave the place of their dream, being a refugee within his/her own country forget? Is this even practically possible?

I believe, if there are other conditions that are met, the victims of conflict may forgive but they will never forget. The TJ process should be able to provide those conditions so they can forgive. They need to know the truth, see the reforms of public institutions, a guarantee of non-repetition, public acknowledgment of what happened, recognition of their suffering, and the restoration of their dignity so they can live as equal citizens enjoying equal protection of law in the country of their birth and citizenship. This is why the interest of victims need to be at the center of this process, and requires urgent amendment of the bill that has been submitted to Parliament.

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