A day for the victims, and for the future of transitional justiceThis day should serve as an occasion to remember the need to continue working towards completing the transitional justice process.
On August 30, the United Nations, families of the disappeared, and activists around the world commemorate the International Day of the Victims of Enforced Disappearances. The day was established by UN General Assembly resolution 65/209 on December 21, 2010. The International Convention for the Protection of All Persons from Enforced Disappearance adopted by the United Nations General Assembly on Dec 20, 2006, represents a significant development in the fight against enforced disappearances and for the protection of victims and their families. It recognises the right of victims and their families to know the truth regarding the circumstances and fate of their disappeared loved ones.
A global problem
Enforced disappearance has been a severe violation of human rights for decades. It is a violation not only of the rights of the victims, but also those of their relatives. The Preamble to this Convention acknowledges the extreme seriousness of enforced disappearance which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity.
In spite of the International Convention being in place, enforced disappearance has become a problem worldwide. The global picture exposes the fact that many states lack the commitment to protect their citizens from this crime against humanity. The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID)—a special procedure of the UN Human Rights Council—alone, since its inception, has handled 57,149 cases of enforced disappearances worldwide, with 45,499 cases from 92 States still unresolved as of 2 May 2018. As a matter of fact, the actual number of enforced disappearances is many times higher than this figure. Among the cases handled by the WGEID, 5,590 are from Africa; 26, 840 from the Asia Pacific; 819 from Eastern Europe; 108 are from Western Europe and other groups; 12,138 disappearances are from Latin American countries and the Caribbean; and 4 cases are from observer states.
No doubt, states are required to lead prompt, impartial and thorough investigations into human rights violations—an indispensable first step towards shedding light on possible criminal behaviour—to examine the circumstances in which it took place and identify the persons responsible for the abuses. Whenever these abuses constitute crimes, states must also take necessary measures to ensure that the perpetrators are brought to trial and, when applicable, sentenced to a punishment commensurate with the crime committed. The belief is that the past cannot, indeed must not, be forgotten. Forgetting or ignoring the past means we cannot learn lessons from it and are at great risk of repeating it.
Liable to uphold
Nepal, having ratified various international human rights treaties, has an international obligation to protect its citizens’ right to life, safety and security. Along with the end of the decade-long armed conflict following the signing of the Comprehensive Peace Accord, the Transitional Justice mechanism, including the Commission of Investigation on Enforced Disappeared Persons was formally set up in 2015, albeit belatedly, to deal with the past injustice and to work towards finding the truth about missing persons. The victims’ families had enormous hope that they would get justice by knowing the truth about what actually happened to their loved ones. Each family has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of their disappeared kin. The commission was supposed to deliver truth, justice and reparations for violations committed during the conflict. Contrary to this, the process has not progressed as expected. Rather, its functionality has been questioned both inside and outside the country, including by the United Nations special rapporteurs who raised serious concerns over the slow progress in the transitional justice process. The special rapporteurs have actually been saying that the legislation governing the transitional justice bodies should be amended in line with the Supreme Court verdict; not doing so is one of the primary reasons for the failure of the commissions to make significant progress in investigations.
The tenure of the two commissions, namely the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) expired on February 9, 2019. The tenure was again extended till April 13, after which all posts have remained vacant. Now, a committee led by a former chief justice of the Supreme Court has been busy in selecting and nominating the members for both commissions for a renewed term, but it has been plunged into a political quagmire—the major parties have failed to reach the consensus to get it done.
Dealing with the past is key for Nepal to advance peace and to find a common ground on which to stand. The more prolonged past injustices remain unaddressed, the higher the risk. Moreover, concerns have been now raised over the selection of members for the transitional justice bodies. Will the commissions, when they are formed, indeed be independent bodies? Can they sincerely dig out old cases and publish their findings? Can they carry out their tasks without fear or favour? Many doubts remain.
Faced with the worrisome fact that the many cases of enforced disappearances remain unaddressed, it is vital that today is not only a day to remember the victims of enforced disappearances and their families, important as this is. Instead, this day should also be about the future and serve as an occasion to remember the need to continue working towards changing the present circumstances. The need, therefore, is to make the commissions impartial, accountable, effective, and free from political interventions. While there is still a long way to go and numerous obstacles lie ahead, with the necessary will, commitment, and determination, the victims’ families may finally have the answers that they are looking for, and may, at last, begin to heal. The state should no longer delay in ratifying the International Convention for the Protection of All Persons from Enforced Disappearance. A country which is not dedicated to putting a stop to abuses perpetrated under its administration is not in a position to claim that it guarantees the rights of its citizens.
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