Both parties to the past conflict were responsible for human rights violation. Its shock and impact still continues due to the lack of government accountability towards the rule of law. As a result, the poor and marginalised communities have been badly affected. If we look at the past, we find that over 80% of those disappeared in Bardia district were from the Tharu community. Till now, no significant measure has been taken to deal with the past as the state of impunity is the major impediment.
Nepal now is in the process of transiting to peace and stability after a decade-long armed conflict. A new constitution is being drafted. However, the post-conflict human rights violation and justice concerns have not been adequately addressed because of various political and non-political reasons that are associated with individual criminal liability.
There has been significant documentation of the breach of human rights and humanitarian law, yet little has been done to address the post-conflict situation. For example, effective debate has yet to be initiated, which would facilitate the process of justice and reconciliation in the violent society to fulfill the aspirations of a new Nepal. Reconciliation along with justice is an over-arching process which includes search for the truth, prosecution of the perpetrators, reparation and guarantee of non-repetition, forgiveness, healing and so on, hence it is a long-term process. Without a doubt, seiner political ladders are responsible for this awkward situation. Time is slipping, and they should not be allowed to enjoy more immunity.
In Nepal, a Truth and Reconciliation Commission (TRC) has been proposed to act as a mechanism for healing, national reconciliation, and to support the peace process. The legal basis for establishing the TRC in Nepal can be found in Article 8.4 of the Comprehensive Peace Agreement (CPA). This is further reflected in the interim constitution of Nepal, 2007. This commitment is, however, confined to political agreement only because nothing, in terms of policy so far as prosecution, justice and reconciliation are concerned, has been initiated.
The top-level political agreement is not enough for healing the wounds of the war for securing the future of the next generation.
Developing a political system and culture anchored on the rule of law understandably requires long-term commitment by the major political parties and the Nepali society, as well as sustained engagement and support from both the victims of the armed conflict and poverty. Rebuilding battered institutions of justice that inspire the confidence of the people, and at the same time serve as a bulwark for progress in the long run, is clearly a very tall order. As a consequence, if the process of national reconstruction is to achieve its desired outcome, it needs to be approached from a national perspective.
In the absence of any action by the authorities to address the needs of the victims, initiating a policy debate for reconciliation is a daunting task. The Truth and Reconciliation Commission (TRC) and Commission on Disappearances (CoD) are undoubtedly the most visible examples of this strategy. However, the effective operation of these mechanisms may be curtailed in Nepal as the victims are unlikely to place much belief on these commissions given the previous trend of government inaction. Successive governments have not shown inclination to implement the recommendations of the different commissions formed from time to time, the Rayamajhi Commission being one of them. Hence, they may not cooperate with the working of the upcoming TRC and CoD. The TRC and CoD significantly differ from other commissions hitherto formed under the Commission of Inquiry Act.
Despite the fact that the Government of Nepal and political actors agreed to form the TRC and CoD, no such mechanism has materialised. The government proposed bills of both the TRC and CoD suggest that the government is in no mood to focus on the immediate economic and social needs but to sidestep the course of justice. The government’s approach of so-called reconciliation includes providing compensation to the victims on an ad hoc basis, and to provide immunity to the crimes committed ‘during the discharge of duties’ and for the ‘political cause’.
In Nepal, the general trend has been that the political victims of government repression do obtain financial benefit on an ad hoc basis after every political change. However, both the ad hoc policy of the government to distribute financial benefits is inadequate to address Nepal’s international obligations. The policy adopted by the government holds great risk in that a blanket amnesty might be granted even to the perpetrators of crimes against humanity.
Need for prosecution
Reconciliation, therefore, needs to be articulated from the perspective of both reparation and justice because amnesty cannot be granted for crimes under international law. The need of prosecution, especially for serious crimes under international law, shall have to be properly voiced. A top-level political agreement is not enough for societies like ours wherein the accountability status is at the zilch level. What Nepal needs now is a bottom-up reconciliation process. Unless a paradigm shift is made in terms of the policies, sustainable peace may become a distant hope in Nepal, because mere discontinuation of conflict does not imply resolution of the underlying concerns that caused the conflict.
(The author is secretary general of FOHRID, Human Rights and Democratic Forum)