Pursuing Transitional Justice in the Aftermath of Peace in Nepal

KATHMANDU, Nepal | 9 September 2024 (IDN) — Ending a civil conflict is always an incredibly daunting task but ensuring a permanent peace that would enable the peace dividend to trickle down can often prove to be even more challenging.

The unbalanced power dynamics and the inequities at the foundation of the societies transitioning out of cycles of enduring violence, often at the roots of the hostilities, are inevitably difficult to alter.

That is why pursuing a transitional justice process in the aftermath of a peace settlement is one of the most complex challenges for countries striving not only for an end to hostilities but also attempting to lay the conditions for lasting harmony and development.

Yet the quest for justice should not be limited to only addressing the injustices faced by the victims, bringing accountability for the abuses committed by the perpetrators.

Its scope is much broader and deeper and intrinsically structural.

The overarching aim should be centred on transformations, doing away with the underlying conditions of dispossessions, inequality and marginalization characterizing a fragile society turning a page from an internal conflict.

It took Nepal almost 20 years to bring the peace process to its conclusion with the establishment of a transitional justice framework supposed to heal the wounds of the war.

An agreement on transitional justice

Over the month of August, the three main parties that have been at the core of the decision-making since the signature of the peace process in 2006, reached an agreement on transitional justice.

What was an unresolved complex political conundrum that political leaders dodged for many years and were unable to solve, ended up with a compromised solution that won’t tackle the most foundational causes of the war.

It wasn’t easy to find the common ground, and the negotiations were intense. As for every negotiated agreement, there are positive aspects but also several flaws.

On the one hand, the final text brings the transitional justice framework closer to the international standards, fulfilling the ruling of the Supreme Court in 2015 that had found unconstitutional a previous legislative attempt.

Yet, on the other hand, there are several aspects that have been strongly criticized by the human rights communities within and outside the country.

The Accountability Watch Committee, a civil society initiative, strongly criticized the agreement especially the aspect that will enable to “reduce sentencing by up to 75 percent except in cases of rape or serious sexual violence” as reported by the Kathmandu Post.

Shortcomings

Some of the major human rights organizations also highlighted serious shortcomings.

Amnesty International, Human Rights Watch and the International Commission of Jurists released a joint press release entitled the “New Transitional Justice Law a Flawed Step Forward”.

Aside the numerous shortcomings, the implementation is going to be extremely complex. Problematic is the way and the forms through which the process will unfold.

Will the three major parties, the governing UML and Congress and the main opposition Maoist Party who had staged the conflict against the state in 1996, be willing to enable a process centred on the victims rather than on the hidden interests of politicians and law enforcement forces and former rebels?

Will there be transparency? Will the international standards be respected?

In order to understand more the views from the perspective of human rights, I separately interviewed two of the most prominent human rights activists of the country, Shom Luitel, the founding member and the former president of People Forum for Human Rights-Nepal and Nirajan Thapaliya, the Executive Director of Amnesty International Nepal.

Two commissions

One of the crucial questions is going to be the appointment of the commissioners of the two institutions envisioned, the Truth and Reconciliation Commission and Commission of Enforced Disappeared Persons.

It is given for granted that the appointees will be politically closed to the three major parties behind the legislation. The fear is that those appointed will be biased in favour of the powerful forces involved in the conflict.

According to Luitel, there is a possibility that, despite the closeness of the upcoming commissioners to the political parties, a certain level of professionalism and integrity could be ensured.

“While the future commissioners will, very probably have, strong connections with the party, I do believe that they can still act according to the international standards, with honesty and impartiality”.

He also highlighted that the country ownership of the process is something that should be praised, the ability of the parties to set aside difference and come up with an agreement, even if an imperfect one.

Thapaliya has a less favourable view. “From what we know from the past two instances of the commissioners’ appointment process, and how the appointments to the constitutional bodies are done, it is not too difficult to surmise that the appointments to the two TJ commissions will not be any different, meaning that they will most likely be done in the same manner – political appointments with sharing of the members’ and chair’s portfolios between the three parties”.

“I am doubtful about the process being impartial, and can foresee that it will not be transparent, credible, and participatory. Unless there is strong international scrutiny and warning, the Government will traverse the same old path, and get political loyalists to the Commissions who will more likely serve the cause of the conflicting parties than that of the victims”, he further added”.

Transitional process

What about the restorative aspect of the whole transitional process?

According to the International Center for Transitional Justice, “transitional justice can address the exclusion and related grievances that victims feel due to the harms they suffered as a result of experiencing human rights violations”.

“I hold the view that a real restorative justice process perhaps will hardly unfold given the nuances and complexity in the wording of the law, as well as the overall intention and indication of the political forces whose motif seems to do away with any form of accountability at the cost of what they call victim-centric reparations” Thapaliya said.

“The provision requiring the AG to file cases with compulsory 75% reduction in sentencing (a form of disguised amnesty) clearly indicates the same. In any case, there is going to be a great deal of evasion, manipulation and obfuscation of the due process in favour of the alleged perpetrators belonging to the conflicting parties”, he further added.

Luitel also shares some concerns, especially because crimes against humanity and war crimes are not fully addressed. Interestingly, all major western nations and the UN system, including the Office of the High Commissioner for Human Rights, showed no reservations about the agreement.

Another human rights expert, who asked to be quoted anonymously, said: “Some of the development partners, in particular the EU and Swiss, and others too, appear to be jubilant about the passage of the TJ bill. I think there is a political stake for these partners here, as they all have invested so much time and resources in Nepal’s peace process, and the fact that the TJ was stalled for such a long time was a loss for them too”.

He furthered added: “We can sense that they wanted to get over this and move to other areas, and priorities but of course with due credits to their efforts and something in hand to demonstrate and brag about to the rest of the world. Fair enough. I am not so sure whether they will really exert pressure to the government, but I can comfortably imagine that they will be more than willing to contribute to funding the process”.

Ultimately such process should go beyond adjudication of cases through a combination of readdressed measures, from amnesty, partial or full, to criminal convictions to alternative sentencing to the broad truth seeking to different forms of representations.

It should make a serious attempt at solving the systemic causes that led to the Maoist insurgency. In one way, the peace process brought in a big achievement, the 2015 constitution.

This is a document that was supposed to turning the society around by making it more inclusive, just and prosperous for all, especially for the numerous communities within the country that have been historically marginalized and neglected.

Yet, the foundations of inequity and power dynamics were hardly challenged. Millions of youths are either working as labourers outside Nepal or have migrated and start a new life.

Governance has never been effective nor “good” and neither the chambers of power have been truly representative of the diversity of the country. Far from it.

The hope is that at least a genuine truth telling process will unfold, with victims and perpetrators able to come together and hopefully, healing while creating accountability.

Perhaps such complex dynamics will help start a conversation about the transformations that the peace process was unable to facilitate. If such a dialogue will start, there is a chance at going at heart of tackling the most intricate and most entrenched dynamics that, at their core, were the causes of conflict.

Hopefully, this could be, at least, the beginning of a much-delayed transformative change that the county still desperately needs.

source : indepthnews