Over 13,000 were killed and 1,300 disappeared during the armed conflict in Nepal that started in 1996 and ended in 2006 with the signing of a Comprehensive Peace Agreement (CPA) between the CPN-Maoist rebels and government of Nepal. The agreement included justice being provided to victims of human rights abuses [i]; that would be an oversimplified version of what transpired and the atrocious abuse of human rights during this timeframe. Unlike distributive, restorative, or retributive justices, transitional justice may not be a long-term solution to such grievances, but it certainly is a start – a start to provide meaningful attempt to fix things given the political condition at that time.
The International Center for Transitional Justice (ICTJ) defines transitional justice to be an adequate response to countries emerging from periods of conflict and repression to address the systematic human rights abuses; normal justice systems would be deemed incompetent during such times. It aims to recognize the dignity of individuals, acknowledge the violations, and aim to prevent them from ever happening again through approaches like criminal prosecutions, ‘truth-seeking’, reparations and reform. The organization has been assisting Nepali victims also by advocating for their reparations and the transitional justice bodies with technical support. [ii]
After drawing much criticism for the sluggish pace of the efforts, an Interim Relief Program (IRP) was formed in 2008 that provided some benefits to only certain victims of human rights abuses – victims of torture and sexual abuse were overlooked[iii]. In 2015, two legal bodies for the transition were planned for and in 2016 the Commission on Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC) were formed, in an attempt, to achieve transitional justice. Both commissions started taking in tribulations from the conflict era with the intention of mitigating them.[iv]
Fast forward to 2019 and not even one case has been fully resolved out of the 3,100 cases received by the CIEDP and 63,000 by the TRC.[v] Victims and human right’s activists both have blamed this to be the result of incompetency of the heads of the committees as they were hired on political ground rather than merit-based. Thus, to avoid this on an existential level, the Council of Ministers on March 21, 2019 had decided to nominate the chairperson and 5 office-bearing members at both committees based on the recommendation of the special committee.[vi] Both committees require five members each who should have at the very least a Master’s degree, not have any political affiliations during the time of appointment and have contributed in some way to the field of human rights in Nepal. Additionally, in order to head a committee, the person must also be either a retired Supreme Court Justice or a Chief Judge at High Court or must be qualified to be a justice at the Apex Courts.[vii]
On the other hand, though the perception of efforts finally being taken in order to start the litigation process is observable, much criticism from the victims, activists and the international community has been drawn.
- The victims have also made clear that new leadership will not be accepted without their consent given the past discrepancies of both transitional justice bodies.
- One major concern the international community has over Nepal’s entire transitional justice process is highlighted in the 2019 Human Rights Watch report on reforming laws associated to transitional justice in Nepal. They argue that Nepal still has not amended its laws based on the 2018 Attorney General Agni Kharel’s recommendation to have universal jurisdiction for such crimes. It means that regardless of the crime being committed in Nepal, perpetrators can be tried in any part of the world. In addition, the Supreme Court in 2015 decided that there would be no amnesty for such abusers too.[viii]
- In January 2019, nine embassies based in Kathmandu also asked for plans about the process, which was followed by a UN letter addressed to the Foreign Minister about the same. The Minister had assured the international community about standardizing the laws associated to transitional justice in Nepal just a month prior.[ix]
Many stakeholders – victims, activists and the international community – have urged the recommendation committee to make the selection process transparent and effective by selecting members after meaningful consultation and the virtues of the candidates are considered, not their political associations.
Transitional justice can only exist if those in power can better respond to the victims demanding justice and the society can accommodate for it. Looking at the many hurdles Nepal faces from this era – this is something that is easier said than done. However, if the transitional bodies were able to function properly and offer reconciliation to those affected – we could see a fundamental change occurring within the Nepalese social fabric because this justice brings about:
- Establishment of institutions that restores faith or confidence in the government.
- Makes access for justice easier for the most vulnerable in the society and could also lead to that start of more effective discussion on ethnic and class-system based problems in Nepal.
- Establishes a basis to address the major underlying causes of conflict and margin by advancing opportunities for reconciliation.
[i] Comprehensive Peace Agreement concluded between the Government of Nepal and the Communist Party of Nepal (Maoist). The Government of Nepal. November 21, 2006. https://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/nepal_cpa_20061121_nepali.pdf
[iii] Nepali War Victims Need Long-Term, Expanded Assistance. Center for Civilians in Conflict. September 26, 2013. https://civiliansinconflict.org/press-releases/nepali-war-victims-need-long-term-expanded-assistance/
[iv] Seeking options for the Right to Truth in Nepal. Eduardo González Cueva. November 2012. https://www.ictj.org/sites/default/files/ICTJ-Briefing-Paper-Nepal-Ordinance-Dec-2012-ENG.pdf
[v] Stakeholders demand competent individuals to represent transitional justice bodies. The Kathmandu Post. April 12, 2019. http://kathmandupost.ekantipur.com/news/2019-04-12/stakeholders-demand-competent-individuals-to-represent-transitional-justice-bodies.html
[vi] Cabinet decides to form recommendation committee for appointing TRC, CIED members. The Rising Nepal. March 28, 2019. http://therisingnepal.org.np/news/30008
[vii] Transitional Justice: Recommendation committee extends deadline for application by 10 day. The Kathmandu Post. April 16, 2019. http://kathmandupost.ekantipur.com/news/2019-04-16/recommendation-committee-extends-deadline-for-application-by-10-day.html
[viii] Nepal: Reform Transitional Justice Law. Human Rights Watch. April 12, 2019. https://www.hrw.org/news/2019/04/12/nepal-reform-transitional-justice-law
[ix] UN letter on transitional justice process puts government in a bind. The Kathmandu Post. April 19, 2019. http://kathmandupost.ekantipur.com/news/2019-04-19/un-letter-on-transitional-justice-process-puts-government-in-a-bind.html