February 10, 2018 marks three years for Nepal’s two transitional justice mechanisms — the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) — formed to provide justice for war-era victims.
On February 5, the government formally extended the tenure of these two commissions by a year. Justice, however, is still a distant thing for the conflict’s victims. In the past three years, neither commission has settled even a single case of rights violations during the ten-year Maoist insurgency, further dismaying war-era victims.
It has been more than a decade since Maoist rebels and the Nepali government signed a Comprehensive Peace Accord (CPA), which ended a decade-long violent insurgency, but justice is still nowhere in sight for the families whose loved ones were killed and disappeared during the war.
Around 16,000 people lost their lives in the conflict, and thousands still remain missing. Other vital components of the peace process, such as integration of Maoist combatants and drafting a new constitution, have been successfully completed, but the grievances of conflict victims remain untouched. Many victims say that the transitional justice mechanisms and the government have largely been apathetic to their plight, and they are losing hope of ever getting justice.
Violations and human rights abuses — such as killing, beating, torture, rape, and enforced disappearance — took place during the insurgency period, perpetrated by both state security forces and Maoist rebels. There is a need for a systematic investigation. The CPA signed in 2006 envisaged the formation of transitional justice mechanisms within six months for providing justice to war-era victims.
Due to disputes among major parties, however, it took nine years for the actual formation of the transitional justice mechanisms. Following pressure from conflict victims and the international community, TRC and CIEDP were formed in 2015; both commissions have drawn criticism for their lack of progress in providing justice to war-era victims.
The TRC has received 60,298 complaints from victims and the CIEDP has received around 3,000 complaints. The majority of complaints were against high-level government officials and political leaders who held office during the insurgency period. In a recent meeting with TRC officials, conflict victims shared their grievances and urged swift justice.
“We have been facing a lot of problems for a long time and we are losing our confidence in TRC mechanisms,” said Chandra Kala Adhikari of Gorkha district, whose husband was killed during the insurgency.
One problem is the current structure of both commissions. The transitional justice mechanisms lack autonomy; they have to rely on government agencies for staffs and budget. In the last three years, there has always been a staffing crisis in the two commissions, as the government provided only 60 percent of the needed staff.
“The transitional justice mechanisms continue to suffer because of their limited mandate and that fact that the government financially controls them. They seem incompetent and passive, and have failed to deliver results on time,” said Ram Bhandari, chairman of the National Network of Families of the Disappeared and Missing. Bhandari further added that both transitional justice mechanisms and other institutions working in this field are focusing on their own activities instead of reaching out to victims who live in far-flung areas of the country.
A second issue is related to the mandate of the TRC, which has delayed the process of providing justice to victims. The TRC does not have criteria for punishment or a policy for reparations. As per the act establishing the TRC, a first information report (FIR) should be registered within six months of the incident being reported. That makes it virtually impossible for the TRC to take up issues related to sexual violence during the insurgency period; too much time has passed.
Furthermore, there has not been any attempt to set up a Special Court to look into cases related to the TRC. At the same time, the TRC needs trained manpower to investigate complaints from victims. Without an amendment to the law to address these issues, the process of providing justice to war-era victims will stall.
There is a lack of political consensus and will to settle the issues related to the TRC. Until and unless there is consensus among political parties, TRC officials say they cannot address substantial issues. The only achievements so far are the commission receiving complaints and establishing offices in seven provinces.
There are increasing calls from both national and international stakeholders to amend the TRC law so that it meets international human rights standards. On February 26, 2015 Nepal’s Supreme Court ruled that there should not be amnesty or pardons for serious human rights violations, such as extrajudicial killing, disappearance, torture, and rape. The court also stated that torture and enforced disappearance must be criminalized; a step that requires legislation to be passed. In sum, the court was of the view that current legislation does not meet international standards.
Top political leaders, however, do not want to empower commissions with full rights to investigate and prosecute war-era cases. The reason is clear: many top leaders of the major parties were involved in serious human rights violations and they fear prosecution. As parties are not serious about amending the TRC act to meet international standards, many international organizations, including the United Nations, have expressed their hesitation to extend their supports to the existing TRC mechanism.
International human rights organizations argue that people who were involved in serious human rights violations during the insurgency period must be prosecuted. If there are not prompt measures to settle issues related to human rights violations, international human rights organizations will raise those issues among the international community. For example, Nepal Army Colonel Kumar Lama was arrested in London in 2013 and tried for alleged torture and human rights violations during Nepal’s decade-long conflict. Later, he was acquitted of war crime charges. The arrest of Lama prompted Nepal to form transitional justice mechanisms of its own, but these mechanisms have proven ineffective.
Recently, Nepal was elected a member of the UN Human Rights Council. More seriousness is required in addressing issues related to human rights violations during the insurgency period, and the world is watching.
Kamal Dev Bhattarai is a Kathmandu-based writer and journalist.