By S. Binodkumar Singh*
On October 7, 2018, Prime Minister Khadga Prasad Sharma Oli at a book launching ceremony in Kathmandu promised, “If someone had committed crime in the name of Maoist War, then they will be punished: there will be no amnesty for serious crimes. We are going to follow the international conventions we have signed.” Earlier, addressing the 73rd United Nations General Assembly (UNGA) in New York on September 27, 2018, Prime Minister Oli had observed:
Nepal’s commitment to the protection and promotion of human rights is total and unflinching. We hold that development, democracy and respect for human rights as interdependent and mutually reinforcing. As a member of the Human Rights Council, we will continue to play our constructive role to deliver on Council’s mandates. The ongoing transitional justice process in Nepal respects the comprehensive peace accord as well as the ground reality for sustaining peace and delivering justice. We will not allow impunity in serious violations of human rights and humanitarian laws.
Notably, on October 5, 2018, the Ministry of Law, Justice and Parliamentary Affairs came up with a fresh ‘preliminary draft’ to amend the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) in line with international standards. Earlier, the Draft Amendment Bill on the TRC Act tabled on June 28, 2018, was rejected by the conflict victims as the draft had proposed perpetrators would not get amnesty in serious human rights violations, but could get waiver in sentences as per the prevailing laws — up to 60 per cent if they did not reveal the truth and did not assist the court, but if they assisted the court, revealed the truth, apologized to the victims and pledged not to commit such crimes again, they could get waiver of punishment up to 75 per cent.
The two transitional justice bodies – Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP), were formed on February 7, 2015, in the spirit of the Interim Constitution of 2007 and the Comprehensive Peace Agreement (CPA) of 2006, to probe instances of serious violations of human rights and determine the status of those who disappeared in the course of the armed conflict between the State and the then Communist Party of Nepal-Maoist (CPN-Maoist), between February 13, 1996, and November 21, 2006. However, these bodies have less than five months to the end of their extended tenure. As a result of their failure to accomplish their assigned tasks, their terms have been extended twice, the latest one pushing the deadline to mid-February 2019. In the three-and-a-half years of its existence, TRC has completed preliminary investigation into hardly 2,800 cases among the 63,000 filed, and is yet to complete a detailed probe into a single case. The CIEDP, which received some 3,000 complaints, has completed preliminary investigation into some 500, but has failed to launch a single detailed investigation.
The fact is, the two transitional justice bodies have made little or no progress in investigating war-era cases of human rights violations, as the Government continues to delay the release of funds necessary for the process. TRC and CIEDP have received no money for investigation despite their persistent lobbying for funds since the beginning of the current fiscal year. This means that both TRC and CIEDP, with around five months to investigate 63,000 and 3,000 cases registered before them, respectively, have little or no resources to complete their mandate. Out of total NR 130 million required by CIEDP, the Government has released NR 40 million for staff salary, and NR 30 million to pay experts and contract officials. But officials say there is no money for travel, which is critical to the investigation of thousands of cases. The situation at TRC is worse. The commission needed NR 117 million for the current fiscal year, towards salary, travel costs, and a stipend for employees, as well as allowances for the victims who need to travel to TRC offices to record their statements. The Government released just NR 37.70 million from state coffers in mid-July.
Following delays by the Government and the transitional justice bodies in providing justice to conflict victims, a group of human rights activists on September 23, 2018, started consultations with political parties and conflict victims to form a common strategy for concluding investigations. The group held rounds of consultation with top leaders of major parties to find common grounds to provide justice for the victims – a crucial component of the peace process that began in 2006. They also met with representatives of conflict victims on September 24, 2018, to seek their suggestions. Members of the group said there has been a broad understanding that the TRC and the CIEDP cannot complete their tasks without the parities’ commitment.
Separately, annoyed by and impatient at the delays of the transitional justice bodies and the federal Government, Bhagiram Chaudhari, President of the Conflict Victims Common Platform (CVCP), an umbrella body of 13 organizations advocating justice of war-era victims, on September 30, 2018, stated, “We have consulted with different local governments and they have agreed to take initiatives for reparation. This would be a step forward in consoling the victims who have been completely ignored by the federal government.” Further, in a bid to pressure the authorities, a group of rights activists led by Ram Kumar Bhandari on October 4, 2018, collected items belonging to over 100 disappeared persons for exhibition titled ‘Memory, Truth and Justice’. Family members have preserved items of clothing, household implements, books, letters and other belongings of the disappeared. Meanwhile, on October 4, 2018, amid the failure of the federal Government to provide reparation to the victims of Maoist insurgency, local Governments in the Bardiya District of Province No. 5 started naming local infrastructure after the deceased and disappeared, and paying respect to the victims’ families.
On October 8, 2018, urging the Government to come up with a law criminalizing conflict-era torture and enforced disappearance, the National Network of the Families of the Disappeared and Missing (NEFAD) Chairman Ram Kumar Bhandari observed, “There were different possibilities that the government could adopt to prosecute the war crimes. The government could either make amendments to the laws of the TRC and the CIEDP and revamp the two bodes by changing the leadership, or hand over the cases to the NHRC with a high-level political mechanism.”
Expressing concern over the provision of community service for war criminals involved in serious human rights violations, the National Human Rights Commission (NHRC) on August 8, 2018, suggested dropping the community service provision in the Transitional Justice Related Bill-2018. NHRC Secretary Bed Prasad Bhattarai stated, “Granting amnesty to rights abusers under the pretext of community service is not in line with the norms of transitional justice. The international community will not accept such provision nor is the provision in accordance with the past Supreme Court verdicts.” Similarly, NHRC member Sudip Pathak noted, “One found guilty in severe cases of human rights violations must be jailed. Only community service is not going to work. It will be injustice to the victims if the perpetrators don’t even get jail sentence.”
International human rights bodies also reiterated the concerns of the conflict victims in Nepal. Calling on authorities to take into account concerns of all stakeholders and to ensure that the amendments comply with international human rights and international crime standards, Amnesty International (AI), the International Commission of Jurists (ICJ) and TRIAL International on July 20, 2018, observed, “The legitimacy and viability of the Government of Nepal’s draft ‘Bill to Amend the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation, 2014’ must be questioned due to the lack of a meaningful consultation process, and serious shortcomings when evaluated against international law and standards.” Meanwhile, the Office of the United Nations High Commissioner for Human Rights (OHCHR) in a statement released on July 25, 2018, noted that the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Commission Act Amendment Bill fails to fully adhere to global practices. Urging the Nepal Government to provide information about missing persons, André Paquet, head of the International Committee of the Red Cross (ICRC) mission in Nepal, stated, on August 28, 2018,
We strongly hope that the Commission on Investigation on Enforced Disappeared Persons and the Truth and Reconciliation Commission will make every effort to give the victims and the families some long-awaited answers. People have the right to know what has happened to their missing relatives. The ICRC reminds all the stakeholders, including the Government of Nepal, of their obligation to provide information to the families.
Twelve years after the conflict ended, the victims of Nepal’s decade-long civil war are still waiting for justice, answers, and meaningful reparations. Even though the two transitional justice mechanisms have begun documenting cases and complaints, they have been hampered by an inadequate law that does not meet international standards, as well as by a severe lack of capacity and proper support from the Government. For justice, there needs to be a robust mechanism of investigation and prosecutions, capable of ensuring the full cooperation of both parties to the conflict. Such a mechanism must establish command and responsibility, and identify perpetrators of abuses that include torture, killings, disappearances, and rape. Despite its failure, the victims continue to pin their hopes on a justice process through the transitional justice mechanisms.
*S. Binodkumar Singh
Research Associate, Institute for Conflict Management