Transitional justice process throughout history, Where does Nepal stand?

It’s been almost 27 years since the decade-long Maoist war started and 17 years since it ended.

The nation emerged from the conflict in November 2006 after the signing of the Comprehensive Peace Agreement (CPA) or Bistrit Shanti Samjhauta between the Maoists and the government — which also promised constitutional and political reform, reconciliation, and transitional justice (Sankraman kaalin Nyaya) for victims of the war. 

The war which left nearly 17,000 people dead, and at least 1,300 forcibly missing is marked by brutal extrajudicial killings, abduction, tortures, rapes, disappearances, and use of child combatants. 

For the victims (over 60,000 victim complaints have been lodged so far), the wait and struggle for truth and justice, however, has been an enduringly painful struggle as the commitment to transitional justice made in the CPA has hardly materialised. 

Nanda Prasad Adhikari, whose teenage son was abducted and killed by the Maoists in 2004, breathed his last in 2014 after spending almost a year on a hunger strike searching for truth and justice along with his wife Ganga Maya in Kathmandu. While Nanda Prasad’s body still remains at a hospital morgue, Ganga Maya hasn’t given up on demanding justice despite her ailing body. 

Such is the tragedy for war victims, which continues to date due to the government’s continued apathy towards delivering transitional justice.

What is Transitional Justice? 

International Center for Transitional Justice (ITCJ) describes transitional justice as how societies respond to the legacies of massive and serious human rights violations. It asks some of the most difficult questions in law, politics, and the social sciences and grapples with innumerable dilemmas. Above all, transitional justice is about victims.

In the face of grave injustices such as widespread violence, disappearances, and systemic abuses, the pursuit of justice becomes imperative. 

According to the Office of the High Commissioner for Human Rights (OHCHR), transitional justice is a way to address past human rights violations so that countries can move forward toward sustainable peace and reconciliation. 

It refers to four specific areas of judicial and non-judicial activities, as categorised by OHCHR, — (i) truth-seeking, (ii) prosecutions, (iii) reparations to victims, and (iv) institutional reform — that are often used when countries move from autocratic rule to democracy or from armed conflict to peace.

To encourage justice, restitution, and reconciliation following conflict — which can take years to resolve — the government usually forms a non-judicial, temporary truth commission. Governments in more than 30 countries have formed truth commissions, which look into acts of violence during wars, pinpoint contributing elements, and probe the causes at their core. 

Prosecution of crimes against humanity, war crimes, genocide, and grave human rights breaches is primarily the responsibility of domestic courts. When domestic courts are incapable or unwilling to carry out efficient investigations or prosecutions, international or hybrid courts should intervene.

For reparations, even the best program may fall short of victims’ needs and expectations where substantial and irreparable harm has been inflicted. However, having no concrete reparations may undermine all other efforts of transitional justice. 

Along with state verification of facts and truth recognition, reparations extend beyond monetary compensation, encompassing symbolic acts like apologies, memorials, property restitution, and restoration of civil and political rights.

The UN Basic Principles and Guidelines on the Right to Remedy and Reparation provide guidelines for diverse forms of reparations, and in post-conflict societies, collective reparations for hard-hit communities are crucial. 

Institutional reform refers to the transformation of public institutions that contributed to conflict or supported an authoritarian regime. The institutional reform aims to transform such institutions into efficient and fair institutions that respect human rights, maintain peace, and preserve the rule of law.

Transitional justice throughout history

The notion of transitional justice emerged with the post-World War II Tokyo and Nuremberg trials, in which the victorious allied forces prosecuted Japanese and German soldiers along with their superiors for war crimes committed during the course of the war. 

Transitional justice measures have been utilised by Canada, Australia, and New Zealand to overcome Indigenous injustice.

Canada established the Truth and Reconciliation Commission (TRC) in 2008 to address the long-term and historical impacts that the (Red) Indian residential school system had on indigenous children and their families. 

Incumbent Prime Minister Stephen Harper apologised to former (Red) Indian Residential School students, families, and communities, seeking forgiveness from Indigenous peoples, emphasising the need for learning and prevention.

Australia confronted the Stolen Generations’ forced removal of Indigenous children from their families and communities, through the Bringing Them Home report in 1997 which included 54 suggestions for making amends for the wrongs done to Aboriginal and Torres Strait Islander peoples.

In 2008, the Australian parliament issued a formal apology to members of the Stolen Generations.

New Zealand, in 1975, addressed its historical injustices, particularly related to the colonisation impact on Maori through the Waitangi Tribunal. Settlements involved compensation, apologies, and the return of lands and resources with efforts to revitalise the Maori language and culture. Twenty-six final settlements had been enacted into law by 2010.

Similarly, during the apartheid era in South Africa, numerous human rights abuses, including torture, extrajudicial killings, and other forms of violence, were perpetrated by both the state security forces and the anti-apartheid groups. The concept of reconciliation played a central role in the South African transition.

Established in 1995, the South African TRC’s hearings characterised by public testimonies and a commitment to uncovering the truth contributed to the nation’s understanding of its painful history. While the TRC faced criticisms and challenges, it remains a landmark example of a transitional justice mechanism.

What has been the transitional justice process in Nepal so far? 

Following the 2006 CPA, it was only in 2015, that the Truth and Reconciliation Commission (TRC) Nepal and the Commission of Investigation on Enforced Disappeared Persons (CEIDP) Nepal were established with the common objectives of investigating the cases of severe human rights violations, ascertaining the facts, documenting them, and making them available to the public.

Though TRC and CEIDP had already been envisioned by the CPA and the 2007 Interim Constitution, the two commissions remained nonfunctional for years. 

Continuous political stagnation, which paved the way for negotiations among political parties to cover one another, has emerged as a crucial factor behind the ineffectiveness of the commissions. However, it is the crisis of political will and failure of state institutions that supersedes the primary reason behind the delays in finalising the transitional justice process.

According to the latest report of TRC Nepal, as many as 63,718 complaints including claims of torture, rape, and murder among others by both security forces and Maoists, were lodged before the commission. As many as 3,787 grievances are being investigated by the Commission after the completion of preliminary screening by its subordinate offices. Similarly, CEIDP Nepal received 3,288 disappearance-related cases. Besides, 80% of 13,286 cases registered with the National Human Rights Commission since its formation in 2000 are conflict-related, revealed Commission’s Chair Top Bahadur Magar at Parliament’s Law, Justice and Human Rights Committee on October 13.

The bill to amend the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act (2014), also known as the transitional justice bill, was introduced to the federal parliament on March 19 this year. 

However, as it is, this bill doesn’t adequately support the prosecution of serious crimes, nor aligns with the Supreme Court decisions and international human rights law. Additionally, the government hasn’t consulted conflict victims enough about what the new law should contain, heavily affecting its credibility.

Earlier in 2014, in the Madhav Kumar Basnet v. the Government of Nepal case, the Supreme Court (SC) ordered the government to ensure that any future laws explicitly rule out the possibility of granting amnesties for human rights violations. Additionally, in 2015, the apex court deemed the amnesty provision within the 2014 TRC Act unconstitutional and against international law. 

Recommended

Nepal’s long row of impunity in corruption scandals

Despite these directives, the amnesty provisions in the TRC Act have not yet been modified to comply with the SC’s rulings. Critics contend that until these changes are made, the TRC and CIEDP will continue to function under laws that prioritise impunity, serving the interests of those seeking immunity from prosecution.

Neither have the concerns raised earlier in July 2022 by victim groups, lawmakers, and human rights experts been addressed in the most recent draft, introduced by the coalition government under the premiership of Maoist leader Pushpa Kamal Dahal.

For instance, the top court had ordered the government in January 2016 to refrain from pardoning Balkrishna Dhungel, a former Maoist lawmaker, convicted of murdering Ujjan Kumar Shrestha in Okhaldhunga in 1998. Yet Dhungel was granted a presidential pardon within seven months of his arrest (in May 2018) citing “good conduct.”

In another instance, Maoist leader Agni Prasad Sapkota was elected to the topmost post of the federal legislature — Speaker, despite an ongoing charge of abduction and murder of Kavrepalanchowk’s Arjun Lama in May 2005, and assumed office full tenure. The hearing in the case registered at the apex court has been deferred at least 45 times.

Similarly, little to no progress has been achieved on mass deadly incidents. 

The day of June 6, 2005, saw a Maoist ambush on a bus carrying civilians and army personnel in Madi immediately killing at least 38 individuals, including three army personnel. The majority of the 72 individuals wounded sustained injuries that led to physical disabilities.

In 2013, Maoist leader Dahal visited Madi and publicly sought forgiveness for the incident, while pledging a relief package of six million rupees for the victims. However, no progress has been made in identifying those behind the blast.

Human rights-related crime cases also include those committed by the state side. 

Maina Sunuwar, a 15-year-old girl was tortured to death in 2004 at an army barrack. Her family’s over a decade-long struggle for justice, which led to a district court conviction of three ex-army officials, is not just reminiscent of state-side atrocities, but also traumas and shadows of war that victims and their families are compelled to long endure in the absence of transitional justice.

Meanwhile, the United Nations Secretary-General António Guterres reached Nepal on a four-day official visit on Sunday, in the backdrop of West Asia unrest. Nevertheless, the same day in a press conference after meeting PM Dahal, he emphasised the need for Nepal’s transitional justice system to meet international standards.

He said: “The United Nations stands ready to support Nepal to develop a process that meets international standards, the Supreme Court’s rulings, and the needs of victims — and to put it into practice.”

Prior to his visit, two organisations representing victims — the Conflict Victims Common Platform and the Conflict Victims National Network — had urged the UN chief to exert pressure on the government for a victim-centric transitional justice process.