The delusive odyssey towards justice: truth-seeking in Nepal
The delusive odyssey towards justice: truth-seeking in Nepal
Kevin T. Sanchez (*)
A pesar del reciente décimo aniversario de la firma del Acuerdo de Paz en Nepal, el inicio del proceso de justicia transicional ha sido constantemente postergado e interrumpido; los sucesivos gobiernos han retrasado, sin justificación alguna, su arranque. En consecuencia, la búsqueda de la verdad es, a día de hoy, el único de los tradicionales pilares que conforman cualquier proceso de justicia transicional que ha visto algún progreso efectivo. El presente ensayo pretende acercar al lector al desarrollo normativo posterior a la firma del Acuerdo de Paz, así como al estado actual en el que el país se encuentra.
Over 20 years ago, on 13 February 1996, the armed wing of the Communist Party of Nepal (Maoist), the People's Liberation Army, initiated an armed conflict against the governmental forces aimed at overthrowing the monarchy and establish a Maoist republic. During the fight, over 17,000 Nepalese were be killed, 78,000 were involuntarily displaced and, until this day, over 1,300 remain missing.
A chronically discouraging attempt
The establishment of mechanisms of transitional justice is an essential step towards the conclusion of the Nepalese peace process. In that sense, the success of both truth-seeking Commissions will be directly proportional to the success of the peace process.
On the 21st of November 2006, the Comprehensive Peace Agreement was signed and more than 10 years of civil war were put to an end. Both sides agreed upon the formation of the Truth and Reconciliation Commission (TRC), responsible for establishing the truth regarding incidents of gross violations of human rights committed in the course of the armed conflict and providing recommendations in relation to legal actions against the perpetrators and reparations for victims. In addition, the Commission on Investigation on Enforced Disappeared Persons (CIEDP), was established to be directly responsible for the investigation of disappearance cases.
Shortly after the ratification of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014), a piece of legislation that granted the Commissions with powers that contravened international standards, the Office of the United Nations High Commissioner for Human Rights (OHCHR) published a technical note in which some provisions were criticized. Amongst others, section 12, was denounced for not providing sufficient guarantees of financial independence of the Commissions; sections 25(2) and 26(4) which empowered the TRC with the plausibility to recommend amnesties for gross violations of international human rights violations, a practice totally inconsistent with Nepal’s international legal obligations and the UN policy against amnesties; and section 22, which was silent with regards to the need to obtain the victim’s consent before the initiation of a reconciliation process.
On January 2014, the Supreme Court of Nepal (SC) ruled against some provisions contained in the Act, very much in line with the OHCHR's stance. The SC considered that amnesties for crimes under international law and gross violations of human rights to be impermissible (par. 34) as these two commissions have to be established in accordance with prevailing human rights standards (par. 20). Furthermore, it was clearly stated in the judgment that neither of the commissions should encourage a forced reconciliation between victims and perpetrators (par. 56.a).
Given the lack of will of the government to amend the 2014 Act, a group of 234 conflict-era victims filed a petition to the Nepalese Supreme Court in June 2014. In February 2015, the Supreme Court largely supported the arguments of the petitioners and nullified the amnesty provision of the transitional 2014 Act on a verdict that formally ended with the possibility that perpetrators could get acquitted without trial. The Court also wiped out the provisions that allowed for reconciliation without the victims' consent. Additionally, the decision included the invalidation of a provision that gave the Ministry of Peace and Reconstruction the authority to vet TRC and CIEDP recommendations for prosecution, ruling that they could not supplant the ordinary justice system in prosecuting conflict-era crimes. Therefore, only the judiciary, not the Commissions established by the 2014 Act, can assess the criminal character of violations committed in the context of the country’s decade-long conflict. Moreover, the SC determined that the Commissions shall not have the right to see and investigate the cases which are already pending in the court system. Regarding newly arisen conflict-era cases, if eligible to be filed before the courts, the recommendation will be directly addressed to the Attorney General and not the Ministry as stated on the 2014 Act. With this last decision, the Supreme Court had thus prescinded from part of the purported governmental interference. Nonetheless, the influence of the government on the Commissions would not be over even if the Act had been reformed along the lines that the Supreme Court had drawn: the current necessary physical infrastructure and budget are a discretionary power of the government; not only the necessary funds for the proper functioning of the Commissions are endangered but so is their independence. The Commissions do not even have the authority to hire employees; the government is in charge of providing the pertinent workers for the Committees to carry out their duties.
Despite the numerous recommendations made by international organizations and human rights groups, the government published the Truth and Reconciliation Commission Rules, 2072 (2016), allowing the Commission to start its work on 22 March 2016. The Commission, which waited for over a year for the regulations to be endorsed by the Council of Ministers, decided to seek complaints from victims for a period of 60 days, between April to June, through district peace committee secretariats. After the case compilation, a probe committee is set to carry out a preliminary investigation of every complaint during the next three months before launching a comprehensive investigation, which would enable for the execution of a detailed investigation process that may last for up to six months. After that, the Commission will be handing over their recommendations to the government in order to proceed with the determined compensations, facilitations or concessions and, in the case in which prosecutions would be recommended against a given perpetrator, the case will be handed over to the Attorney General who shall have the discretion to decide whether the perpetrator is to be prosecuted or not. Similarly, the CIEDP announced that it would start receiving complaints from victims' families from April to June and follow a similar procedure thereafter. Should time be insufficient to insure the investigation and recommendation of cases, the government may extend the term of office by a period up to one year.
This 2-month compilation period resulted in the reception of 57,753 complaints by the TRC and 2,941 by the CIEDP. However, the commissions are still not able to conduct substantive investigations into the complaints due to the delay in amending the crucial provisions of the 2014 Act. Another big issue has been the protection and security of witnesses, victims or complainants against retaliation: even though Chapter 4 of the TRC Rules 2016 focuses on a set of provisions on how to protect these people, it has been futile. The district peace committees proved unable to provide enough security: for example, victims have been seen filling up their complaints in small rooms where confidentiality and privacy are jeopardized.
A glimpse at the situation of the other TJ's pillars
Despite the recent 10th year anniversary since the signature of the Comprehensive Peace Agreement, the initiation of the transitional justice process has been constantly deferred and disrupted. Consequently, truth-seeking is the only pillar that has seen some effective progress thus far.
The purpose of the Commissions and that of criminal justice is different. The SC and various international organizations and human rights groups have insisted to the subsequent Nepalese governments that the work of the Commissions is to complement, rather than replace, the ordinary judicial system. In this regard, criminal prosecution will not be possible due to the current flaws of the legal system: Nepal does not have a law that criminalizes torture or enforced disappearances retroactively. Similarly, it is important to note that Nepal is yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute, which is compulsory in order to prevent impunity during future wartime, as it would allow the International Criminal Court to investigate cases of genocide, war crimes and crimes against humanity in case the Nepalese State would not be able or willing to do so.
The Truth and Reconciliation Commission is currently in the process of drafting a reparation guideline with a set of suggestions for victims' families, including: “Free education, vocational training, and soft-loans and residential and other facilities such as psychological counseling, (...) a public apology from head of state/government or responsible persons from the conflicting parties, declaration of Martyrs' Day in the name of the victims, naming local infrastructure after the victims etc have also been proposed so that it would help heal the wounds of crime victims”. The suggested reparations will depend on the nature of the crime committed, whether it was murder, abduction, maiming, torture, rape and sexual violence, seizure of property or forcible eviction and displacement.
Nevertheless, this process is still in its very early stage. The guideline does not mention, for example, “the ceiling on financial packages or duration of free education, limit of soft-loan or other technical details of the proposed reparation packages”.
Even though Section 22 of the 2014 Act empowers the TRC to reconcile victims and perpetrators, it is silent regarding the pursuant methodology on a collective level. Reconciliation within a given society goes beyond the mere (but important) one-to-one approach; it requires the formation of institutions that are trustworthy. Nonetheless, the Nepalese process is very much focused on the notion of individual reconciliation, an approach that has been “supported by the Supreme Court”.
A final rumination
The successive Nepalese governments, formed by a disparity of coalitions, have not shown an honest intention to proceed with the prosecution of the perpetrators of atrocious crimes committed during the civil war. To date, authorities have taken no action to implement the Supreme Court’s decisions to rectify the flaws of the truth-seeking process.
The OHCHR stated in February 2016 that it has no intention to recognize the Nepalese transitional justice system under the current legal and procedural mechanisms. Additionaly, Surya Kiran Gurung, Chairman of the TRC, has recently accused the government of weakening the two bodies by not providing neither legal nor financial support and threatened to quit if the situation does not improve. Similarly, Lokendra Mallick, Chairman of the CIEDP, denounced the fact that the Commission started carrying out preliminary investigations into registered complaints with the inherent difficulties for the lack of “manpower, budget resources or the related laws to carry out these key tasks (...). Neither has the government provided us the staff nor allowed us to recruit necessary hands”.
The inability of the Nepalese authorities to address the situation diligently resulted in the victims of both factions uniting in asking for justice, something that the State is apparently not ready to deliver. The Nepalese society have long waited for the opportunity to seek the justice they deserve; to gain back their undermined dignity.
The mandate of TRC and CIEDP expires in February 2017. It is said that each country “has its own window of opportunity in which the political space to initiate reforms necessary for accountability may be taken forward”.
While the atrocities were committed by two different sides, the pain was the same. Today, war is over, but pain is not.
(*) Kevin Toro Sánchez, participa en el Máster Europeo (E.MA) en Derechos Humanos y Democratización en el EIUC.
 OHCRH. “Nepal Conflict Report: Questions and Answers”, 8 October 2012, p. 18.
 Available at: http://trc.gov.np/base/file/actsrulesguidelines.pdf
 As written on the printed edition of the Kathmandu Post 03/03/2016, page 5.
 Available at: http://trc.gov.np/base/userfile/files/trc_rules_2016.pdf
 Rules 32, 33 and 34 of the TRC Rules 2016.
 Section 29 of the TRC Act 2014.
 Section 38(2) of the TRC Act 2014.
 Pandey, Lekhanath. “18 types of reparation schemes proposed for war-era crimes”, October 2016, The Himalayan Times, (available at: http://thehimalayantimes.com/nepal/18-types-reparation-schemes-proposed-war-era-crimes/).
 Lassee, Isabelle. “The politics of sequencing: a threat to justice?, 2016, South Asian Center for Legal Studies (available at: http://sacls.org/resources/publications/reports/the-politics-of-sequencing-a-threat-to-justice-2).