In Nepal, investigations of and prosecutions for grave violations of human rights committed by the security forces and Maoist rebels in the conflict period are long overdue. Perpetrators continue to argue for a blanket amnesty under the pretext of national unity and peace.
However, the UN Office of the High Commissioner for Human Rights has documented over 9,000 cases of serious violation of international human rights law including unlawful killings, disappearances, torture, arbitrary arrests, sexual violence and some atrocities that may even constitute crimes against humanity and genocide. The practices of impunity, lawlessness and excessive intervention by politicians in the judicial investigation of war-time era abuses are undermining the nascent peace process and the true values of transitional justice and democracy. How can people have faith in the future of justice in Nepal if it has failed to deal with the past? Why are we allowing most of the perpetrators to walk free? What is the best path to peace and reconciliation in Nepalese context, and how can it be realised?
The Comprehensive Peace Accord was signed seven years ago, but little has been done since to effect the transitional justice that is crucial to establishing a durable peace. Nepal need urgently to establish an effective and independent Truth and Reconciliation Commission (TRC) in accordance with international human rights norms. However, there are some important questions to think about. Can merely establishing a TRC and punishing a few perpetrators be wholly effective in reconciling a society so divided by conflict? Did integration of a few thousand former Maoist combatants into the national army alone complete the peace process? What of the social and economic factors that need to be addressed? What of reparations due to the victims? Should Nepal not take a holistic approach to justice as the country seek to achieve a lasting peace?
A culture of impunity stems from the gross failure of the state to meet its obligations to investigate violations of rights and to punish those responsible. Can such impunity really be the answer? Whenever the government decides to launch an investigation into a war-era crime, the UCPN (Maoist) party, especially its leadership, routinely warns that such a move could jeopardise the upcoming election and the entire peace process, and they threaten to stage another revolt. Why? Is it a sign of their own involvement and of their own fear of future prosecution? The peace process and justice must move forward side by side, but establishing a TRC merely to punish the perpetrators cannot alone help the reconciliation process and the achievement of lasting peace. Unless other factors, both social and economic, become central to the peace and justice process, Nepal shall have no clear road to peace, democracy or proper political stability. I have a few points by way of illustration.
Firstly, the foremost reason for establishing a TRC must, of course, be to bring perpetrators to justice. It is natural that those who were directly involved in extra-judicial killings in the wartime era are the ones most against establishing the TRC. However, punishing the perpetrators must be only the departure point for a national re-building and peace process that aims to maximise truth seeking, truth telling and honest acknowledgement. The TRC process must also address the needs and demands of both victims and survivors. It must represent an important stage in the great public debate aimed at achieving a lasting reconciliation with a renewed sense of telling the truth and developing a caring society. It must look to the pursuit of unity rather than division – to constructive debate rather than confrontation. The reconciliation sought via the TRC must provide a historic bridge between the country’s past divided society, characterized by conflict, untold suffering and injustice, and a future one founded on the recognition of human rights, democracy and the peaceful co-existence of all Nepalese people. The TRC process must be seen as a first test for the establishment of the rule of law.
Secondly, justice and peace must go hand in hand, for justice is the soul of any peace building process. Establishing justice deters the repetition of past atrocities. No one must obstruct the investigation, and no one must be above the law. The voices of the victims must be adequately and duly considered: they must be guaranteed an opportunity to give a very full account of events as they experienced them. Their testimonies will be crucial in overcoming impunity and proving, as always, that ‘bad memories merely slumber: they never sleep.’ Justice and peace are inextricably linked. The true test for all transitional justice options, including prosecution, rectification and national conversation, is whether in the end they help to bring about full political reconciliation and rebuild the nation. Without the elimination of social polarisation, no attempt to ensure the long-term rule of law will succeed
Thirdly, does legal justice alone lead automatically to reconciliation and peace? What form of justice is required that goes beyond punishment alone? As with all the post-conflict societies, improving the social and economic wellbeing of the people is vital for establishing peaceful co-existence between all levels and layers of society. Clearly the greatest threats to political stability in Nepal are the delay in providing sufficient poverty relief and the level of unemployment. Establishing the truth alone is insufficient to ensure national reconciliation. That and national healing must be based on appropriate reparations and an affirmation of the rule of law. For them systematic socio-economic reform and structural change are needed. The standard by which trials for mass atrocities must be evaluated is that beyond their punishments they bring about a democratic culture based on economic and social integration. There is a greater need to balance ‘having and belonging’ in the nation building process. As Govan Mbeki, a veteran leader in South Africa, argues: ‘For political renewal to endure, the
economy needs to be restructured in such a way that the poor and socially excluded begin to share in the benefits of the nation’s wealth.’
Finally, democratization and participation of all in the decision making process is an important aspect of post-conflict reconstruction. Citizens must be invited to talk and a new or additional vehicle for democratic participation must evolve. To sustain the transition from violent conflict to peace and democracy it will be necessary to involve popular support, i.e. civil society, the media and constitutional and institutional bodies, all of which are essential to democracy and the rule of law. The primary aims of transitional justice must be to restore human dignity to all victims and to enable the society as a whole to regain its self-confidence. It must acknowledge the suffering endured, recognize the price that was paid, and involve both victims and survivors in their own restoration both within their communities and within the nation as a whole. A democratic transitional process further calls for vulnerable groups to be empowered and allowed to play their part. All must be offered the opportunity to tell their story and to take part in the peace building process that follows a brutal ten-year civil war in the country.
In Nepal, the future TRC, as a departure point towards a sustainable peace, must be able to produce the road map for political and institutional change and, most importantly, must be part and parcel of a new greater democratic debate in Nepal. The chief aims and ambitions of the TRC must be to create a broader national conversation that addresses the conflict era atrocities and draws up a design for the future of the nation. The national conversation must break the silence that surrounds the suffering of both victims and survivors of past oppression: it must draw from the perpetrators an acknowledgement of their crime and bring them to a court of justice. The TRC must not merely be regarded as a means of taking revenge and punishing perpetrators: it must establish new social, political and economic parameters for the sake of the country’s future wellbeing.
The culture of impunity undermines democracy itself. Those responsible for the most serious crimes must be held accountable in accordance with international norms and principles: there can for them be no amnesty. Experience shows that democracy grows stronger when it is capable of ensuring that those who break the law are suitably punished. However, accountability and justice do not begin and end with prosecution and punishment. Victims’ needs must be properly addressed, public institutions reformed, and the economic and social wellbeing of the people improved so that the whole of society can come to terms with what previously divided it and fuelled the conflict. Reconciliation and nation building take time: let the country waste no more of it in getting started.