Herculean tasks lie ahead for transitional justice bodies

A Statement by the Asian Human Rights Commission

NEPAL: Herculean tasks lie ahead for transitional justice bodies

Nepal’s transitional justice bodies closed registration of complaints on 10 August 2016, with over 60,000 cases registered during the last four months. The Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) now have six months to establish truth, investigate into violations of human rights, and make recommendations for action.

Although these commissions aim to complete their task within the coming six months, it is in fact a Herculean responsibility to finish in the stipulated time.

The transitional justice bodies, which were envisaged in the Comprehensive Peace Agreement (CPA) signed between the government and the then rebel forces (Maoists), came into being after nine long years in February 2015. The formation of the TRC in 2015, eight years after the signing of the CPA, marked an important milestone in Nepal’s peace process.

The TRC and CIEDP only started receiving complaints from the conflict victims in mid-April, 14 months after coming into existence. These commissions, which were formed with a two-year mandate, have to complete their tasks by February 2017. With over 60,000 cases registered, they have an immense task to fulfill.

It must be noted that the commissions’ job is not only to bring reconciliation and provide compensation to the victims, but also to prosecute, and recommend actions against serious rights violations. The international community is keenly watching progress in Nepal, and has continuously called for relevant amendments to the TRC & CIEDP Acts in accordance with the Supreme Court’s (SC) decision and international rules and regulations. According to the SC verdict, amnesty cannot be provided in every case, and action needs to be taken against perpetrators of grave human rights violations. If those amendments are made, the international community will cooperate, or else Nepal is going to stand alone in the international arena.

Amending the TRC & CIEDP Acts as per the SC verdict could be the starting point for the government to spur on the transitional justice process. The transitional justice bodies already dispatched draft amendments to the government, but no action has been taken so far. Both commissions are under-staffed, which could be major obstacles for the commissions to finish their tasks in the coming six months.

The law is silent on what happens to cases that the two commissions cannot process, and decide on. The government should pass clear laws on that. The authenticity of the cases that have been registered must also be checked and confirmed.
Torture is included as a gross violation of human rights mentioned in the Act, but Nepal has yet to enact a law criminalizing torture. The phrase ‘serious crime’ in the Act is another problem, since there is no explanation as to what kind of crimes constitute ‘serious crime’. Without being clear on this, how can the TRC do its job?

The time period for reporting rape cases was extended from 35 days to six months by the SC, but that does not help as the TRC was formed almost nine years after the CPA was signed. Without getting rid of this provision, prosecution of the perpetrators of rape and sexual violence is impossible.

There is a provision of a special court for cases recommended for prosecution, but such a court is not in existence yet. It must be established as soon as possible.

All the cases registered during the war-era have to be investigated and action needs to be taken. While the Maoists want to ‘forget and forgive’ all incidents and move on, all political parties must bear in mind that action needs to be taken against perpetrators of violations in order to give closure to the proclaimed peace process. At the same time, victims must be the primary stakeholders in the search for long-term peace in a post-conflict society. Both sides committed violations during the war, with innocent civilians becoming the victims. There may be some cases in which the victims want to forget and forgive, while in other cases they may feel they deserve justice. The TRC & CIEDP must respect victims’ wishes. The political parties and other stakeholders must internalize that serious cases of rights violations must be prosecuted. The TRC cannot be successful if it fails to take a balanced approach on all these issues.

Political parties seem to fear the transitional justice process, which is one of the reasons for the abrupt change of government last week. Transitional justice is a big part of the peace process, and the Maoists, the Nepali Congress, and the security forces are involved in this process as envisioned in the CPA. Cases of grave rights violations must be dealt with as per established principles of transitional justice.

The Asian Human Rights Commission (AHRC) believes that if victims are not satisfied with the truth seeking and justice process in Nepal, they may turn to foreign courts. The international laws and conventions that Nepal is party to should therefore be kept in mind before considering easy-escape options. The government must be cautious of the fact that under international human rights laws, and the principle of ‘Universal Jurisdiction’, there can be consequences if stakeholders including political parties opt for easy washing of blood from their hands.

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