Transitional justice should also address root causes of the conflictThe two-year mandate of the two transitional justice bodies formed to investigate insurgency-era cases will expire at the end of the week.
The two-year mandate of the two transitional justice bodies formed to investigate insurgency-era cases will expire at the end of the week. During the two years, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) collected over 60,000 complaints of conflict victims, but the commissions have been viewed critically for their low performance. Ram Kumar Bhandari, a prominent rights activist and an expert on transitional justice, has led the struggle to secure justice for Nepal’s conflict victims for over a decade. His involvement with the victims’ movement began when his father was disappeared in 2001. Dewan Rai spoke to Bhandari on the progress made on the transitional justice issues, the human rights movement in the country and the right way forward.
How do you assess the two-year tenure of the transitional justice bodies?
The commissions functioned more as administrative and bureaucratic units than as inquiry commissions we advocated for. The TRC registered over 58,000 complaints, while the CIEDP collected close to 3,000 complaints. They are the only achievements of the two bodies so far. This documentation is an official record that will help future generations understand the insurgency. It was the first time that an official state mechanism mobilised the family members of the victims.
What is the position of the victims’ community on the process that the transitional bodies have adopted?
The transitional justice mechanism should address the concerns of conflict victims. For this, we want a victim-friendly policy, in line with the Supreme Court verdict. The dilemma among the victims was whether they should work with the commissions in making the process victim-friendly or whether to pressure the government to make the system and policies victim-friendly. The commissions neither became adequately victim-friendly nor has there been joint pressure on the government to make the policies victim-friendly.
A section of human rights defenders kept attacking the commissions. When the commissions were set up, they even appealed for a boycott of the process. The call for a boycott created fissures between the Kathmandu-based rights defenders and victims. We, the victims, decided to critically engage with the commissions and registered our complaints.
How much has a critical-engagement approach helped the process?
We decided to adopt such an approach after a nationwide consultation. This helped build a partnership between the commission and the victims. Earlier people did not know what the transitional justice process was about; later they themselves participated in the process. The commission should adopt a participatory approach in formulating the reparation policy.
How effective have you found the civil society and the international community in facilitating transitional justice?
A group of human rights activists had captured the transitional justice discourse before the commissions were formed. They manipulated and used the transitional justice issues for their personal benefit. They used the universal language of human rights to establish Western agenda. They advocated a prosecution-oriented approach using a narrow legal lens. This overlooks the root causes of the conflict, and the victims’ concerns remain ignored.
When the commissions were formed, the same group asked for a boycott of the process, while the political parties and the state wanted to push for amnesty and reconciliation.
The Western governments, donors, the United Nations and international agencies did not support a victim-centric approach in formal and informal processes. They missed the opportunity to support the victims.
The international community has been citing legal provisions and keeping away from the process. Was it a good move?
A lot of things could have been achieved in two years. For instance, if the government had enacted laws and provided adequate resources, the mechanisms would have been strengthened and the international agencies would have been supportive. After the commissions were formed, external agencies decided not to support the mechanism. The roles of the government, Parliament and court were also obstructive.
The government did not show strong political will and commitment to the process. Politicians used the agenda as a bargaining chip to gain power. Parliament neither enacted the required laws nor pressured the government to work for the conflict victims. The court verdict, too, hindered the process.
But the court issued a number of verdicts in the victims’ favour, the latest being scrapping the criteria to shelve the victims’ complaints?
I am referring to the cases in which the court’s verdict created complications. For instance, in our case, the court categorised all kinds of crimes as crimes against humanity, triggering a political debate. The court categorised nine crimes as crimes against humanity, some of which cannot be categorised as such by international standards. We should have developed a local support mechanism and national standards.
Why aren’t the rights defenders and the civil society active these days?
Nepal’s human rights movement is political. Human rights actors look more like allies of political parties. They often raise the issues of civil and political rights. But the root cause of the conflict are structural violence and social, economic and cultural discrimination. The human rights movement never adopted a transformative agenda. The talks about international standards and universality are detached from local realities.
The international human rights movement also appears to be a part of the problem. It does not offer solution, debate, partnership, dialogue, action and transformation. The issues of the Madhesis, the Janajatis, the squatters, the urban poor and the marginalised never appear in the public discourse. This has further eroded socio-political cohesion.
The commissions’ mandate will expire on Friday. How do you think they should move forward?
We are hopeful that the government will extend the mandate of the commissions. There are challenges such as internal conflict within the commission. A lack of understanding of transitional justice and insufficient resources are major obstacles. The government should be responsible for strengthening the commissions. The commissions have already collected complaints; now they should not leave the task halfway.
If the mandate is extended, we want to make sure the extra time is put to good use. Now that the complaints are already in the national archive, the government should formulate a national archiving policy. The government should create support mechanisms with direct involvement of the victims. It should also create an interim support mechanism. We can formulate a number of policies—economic policy, memorialisation, etc—and then go for long-term solutions.
What are the most important lessons we learnt in the last two years?
Transitional justice needs to be linked to transformative justice and address root causes of the conflict. The main agenda should be addressing the issues of ordinary victims. All actors must listen to those who matter the most—the grieving conflict victims and ordinary citizens awaiting justice.
We should reform national institutions as envisaged by the Comprehensive Peace Accord. While critical engagement is the approach of the victims, other actors should adopt constructive engagement. The combined approaches can produce optimal results.
What in your opinion is the best approach for the state to adopt?
The political stance should shift and required laws should be put in place. The role of the external actors should be revised with a clear position to support both the formal and the informal process, ultimately supporting the victims. If we do not contribute to this process, it will yield fewer results. The cases registered should be archived responsibly. There should be recommendations for prosecution of the perpetrators as well as a reparation policy and support mechanisms for the victims.
The final report, which should be a national document, should be robust and credible. This is also a process of writing history. The commission should prepare a socially and politically acceptable and credible report to establish historical truth and create an environment for non-recursion of conflict. For all this, we need a partnership with the commissions. If we do not play a constructive role now, we will lose a historic opportunity.