Justice in transition

Baburam Tamang, Maoist activist, one of the 21 killed execution-style by the army in Doramba in August, 2003.

It is just over 12 years since the Comprehensive Peace Agreement (CPA) charted a way forward after a decade of civil war. One feature of the CPA was its explicit recognition of the need for a comprehensive ‘peace process’ that included the establishment of specific institutions dedicated to uncovering the truth about war crimes and human rights abuses during the conflict, to discovering what happened to those who had ‘disappeared’, and to bringing those responsible to justice.

There were already at that time well-known and well-documented examples of atrocities committed during the conflict by the Royal Nepal Army and Nepal Police, the Armed Police Force (APF), the Maoist PLA and the Communist Party of Nepal (Maoist). It was anticipated that other crimes would be discovered and pursued, and instances of disappearance, ill-treatment, torture and extra-judicial killings would be revealed and dealt with, sensitively but with due process.

Read also:

Rocky transition to justice, Editorial

Just not justice, Om Astha Rai

Two Commissions were to be established, but it took two years for them even to be formally constituted. Supposedly ‘independent’ they were in fact ‘multi-party’ bodies (not the same thing) and were wracked by party, political and personal divisions. They have proved to be almost totally ineffective as vehicles for establishing ‘the truth’, promoting ‘reconciliation’, or bringing the perpetrators of war crimes and human rights abuses to justice.

The victims of conflict have been poorly served by these Commissions, and it is not surprising that there is pressure to dismantle and not to extend their terms of office. But the proposal to establish a new ‘independent’ entity raises further questions.

‘Independent’ cannot again mean a cross-party entity because it would then include members whose independence cannot be taken for granted. To be truly independent it should have a membership entirely unrelated to the political parties: respected figures from the academic community and/or the judiciary perhaps, and certainly representatives of the victims.

Of course, those who fear that ‘transitional justice’ would lay them open to shame and dishonour, and more crucially to judicial proceedings not only in Nepal but also in other jurisdictions (given that war crimes can be tried outside the country in which they were committed) have been and remain fearful of the work any effective independent commission might do. They and those who protect them have done everything possible so far to block effective progress on all fronts. They have been successful.

The officers and men of the Nepal Army and Police, on the one hand, and the Maoist leadership and cadres of the PLA and the Party, on the other, have the most to fear from a serious enquiry into each of the many thousands of alleged incidents and instances of human rights abuses and war crimes. It is they, and those who speak for them and protect them, who bear the greatest responsibility for the blockage of the peace process, the perpetuation of the suffering experienced by the victims and their families, and the injustice done to them. And for the fact that the country still bleeds from this running wound.

Successive governments have failed to provide necessary support to the two Commissions to enable them to act effectively as legitimate independent bodies, immune from the pressure of vested interests and particularly of those individuals who were liable to investigation and prosecution. Indeed, they have been responsible for initiatives to undermine due process within Nepal and abroad.

No effort was spared, for example, by the government of Nepal, first to prevent and then to subvert the trial in London of Colonel Lama who was accused by two Nepalis of torture,  when the British police and Crown Prosecution Service (CPS) had charged him with war crimes. Eventually, that trial was brought to an inconclusive halt when the CPS withdrew its proceedings against Colonel Lama.

Also, the so-called ‘international community’, while calling for the completion of the peace process started by the CPA in November 2006 and taken forward over the next two years –and even supervising aspects of it (like integration via UNMIN) -- has tended all too often to regard transitional justice as a barrier to the peace process rather than a necessary part of it. The political parties appear to wish to model the new proposed entity on the integration process, but UN involvement has been ruled out on the advice of one foreign delegation in December 2017.

More recent secret initiatives by the Swiss and German representatives in particular (and possibly others as well) which seem to propose resolving the issue by effectively sweeping the whole thing under the carpet certainly run counter to the thrust of the CPA and to the rights of the victims and their families to be heard, to be heeded and to secure justice. Few of those demanding justice will agree that the CIEDP has almost completed its work.

It is time for transparency, for a truly independent body, perhaps with judicial oversight, to investigate fully and process properly the claims and allegations of the victims of human rights abuses and war crimes, and for those found guilty of perpetrating such abuses and crimes to be brought to justice, in Nepal and, if considered appropriate, in the International Criminal Court (ICC) at The Hague.

Read also: 

Justice delayed, justice denied, Editorial

The struggle for Transitional Justice, Hari Phuyal