Eighteen years after the signing of the Comprehensive Peace Agreement, Nepal’s major political parties were able to ink a four-point agreement to resolve the critical issues of Nepal’s transitional justice process. On August 7, the Nepali Congress, Communist Party of Nepal-Unified Marxist Leninist (CPN-UML), and Communist Party of Nepal (Maoist Center), signed an agreement that would move forward the long-pending transitional justice process, which had been stalled owing to political differences and disagreements among conflict victims.
As a result, Nepal’s federal parliament endorsed the transitional justice law on August 14, thus paving the way for addressing the issues of human rights violations and abuses committed by both sides during the ten-year-long conflict between 1996 and 2006. Some 17,000 people were killed in Nepal’s civil war and nearly 1,400 are still listed as missing.
The upper house unanimously passed the transitional justice bill on August 22. The bill was then forwarded for authentication from the president, which occurred on August 29. Now the bill will come into force upon being formally published in the Nepal Gazette.
The new law will lead to new appointments to Nepal’s two transitional justice bodies, the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons, which were formed nearly a decade ago. These commissions have had no leadership for the past two years and have over 65,000 pending complaints from conflict victims and their families awaiting justice.
The new agreement on Nepal’s transitional justice process has been welcomed and supported by the international community. The United Nations’ Human Rights Chief Volker Turk praised Nepal as “a regional and global example of a successful peaceful transition towards democratic, constitutional, and federal governance.”
However, not everyone is pleased.
Prior to the upper house passing the bill, dozens of victims staged a sit-in protest in the capital asking for necessary amendments before it was endorsed by the National Assembly. Victim groups as well as civil society and human rights organizations say there were few formal consultations held with them prior to the agreement between the political parties. As a result, critics say the current bill lacks a victim-centric approach. Parts of the law are also being accused of being perpetrator friendly, thus safeguarding them from accountability for serious crimes committed during the war.
A recent joint statement issued by Amnesty International and Human Rights Watch (HRW) called the new law a “flawed step forward.” The groups pointed out “serious shortcomings” and implementation challenges that could hinder the success of Nepal’s transitional justice law. According to these rights organizations, despite some positive provisions, “accountability gaps” will pose major challenges.
What’s Contentious in the Transitional Justice Bill?
Rights advocates, victim groups, and some civil society organizations have pointed out a couple of loopholes in the new transitional justice law. The changes, which represent the third amendment of an existing law, divided crimes committed during the conflict era into “violations of human rights” or “serious violation of human rights.” The bill says that offenses defined as human rights violations could be granted amnesty while “serious violations of human rights” could be referred for prosecution in a special court. “Rape or serious sexual violence,” “intentional or arbitrary killing,” “enforced disappearance, provided that the victim’s whereabouts remain unknown,” and “inhuman or cruel torture” are all listed as “serious violations of human rights.”
This very categorization of rights violations “serious” or (implicitly) “not so serious” – and torture as either “inhumane or cruel” or (again implicitly) not – is a flawed concept. Any violation of human rights or torture of any kind is a grave matter in itself.
Another provision that reduces sentences by 75 percent in cases except for rape or serious sexual violence has also invited criticism. According to this provision, the perpetrator is subject to a reduction in sentencing provided that certain criteria – such as disclosing the truth, making an apology to the victims, or paying compensation – are fulfilled.
This provision could support amnesty in camouflaged form. Reduction of an offender’s sentence should be determined based on a thorough investigation of the facts and submissions by the parties to the proceeding.
Also, as per the new law all disqualified Maoist combatants along with the families of security personnel who died or were injured during the insurgency, will get reparations and compensation. But the bill is mum on issues specific to child soldiers. Out of 4,008 Maoist combatants who did not qualify for integration in the Nepali Army, 2,973 were identified as minors.
Accountability and Trust at the Core of Implementation
The survivors of the decade-long war and the families of victims have now been awaiting justice for almost two decades. Some still feel the pain of physical and psychological injuries, some are in desperate need of compensation, and some are also struggling to know the truth about their loved ones. All are waiting to see perpetrators brought to the books of justice.
The endorsement of the bill is now at least expected to provide some respite to the victims and their families, and also provide a logical end to Nepal’s peace process. However, its successful implementation is contingent upon many factors.
From the very beginning, Nepal’s transitional justice process has largely failed to develop political consensus and garner the trust of the victims. Victim groups have constantly complained that the transitional justice process is arbitrary and has not fully safeguarded their security and confidentiality while lodging complaints. The dissent expressed by the victim groups this time too does not indicate a completely rosy picture. Ensuring confidentiality and security yet again remains at the core of its implementation.
Nepal’s transitional justice system also has a history of inordinate delays and indifference in providing justice to the victims, which has led to citizen’s “fatigue” with the process. The process has also faced overt manipulation from the political parties for personal and political advantage, which has again eroded the trust toward the two commissions.
Both the commissions have repeatedly underperformed and there is no guarantee that the next commissioners will be devoid of political influence. If a non-partisan and transparent process is not adopted while appointing the new heads of these two bodies, the long struggle of conflict victims and their families might again be submerged beneath political motives.