Four months after the formation of the Truth and Reconciliation Commission (TRC) and the Commission for the Investigation of Enforced Disappearance, little progress has been made towards addressing conflict era violations. Now, amidst the ongoing earthquake crisis, the crucial Supreme Court verdict of February 26 has been called into question. The Supreme Court verdict stated: amnesties cannot be granted for serious human rights violations; reconciliation cannot be enforced but needs the full consent of the victims; the government cannot choose which cases to prosecute; the commissions need to send their recommendations directly to the Office of the Attorney General; and the conflict-related cases currently in the regular criminal justice can be handed over to the commissions.

The government is taking advantage of the earthquake and the resulting confusion to further marginalise conflict victims and subvert efforts to make progress on a victim-centric transitional agenda. The government has appealed for the review of the February 26 verdict. At first, the court rejected the appeal. On May 24, however, through the attorney general, it accepted the application to review the verdict. The earthquake is thus being used as a political tool to gain leverage in the ongoing transitional justice debate—questioning this important ruling when the country is preoccupied with rebuilding.

Unwelcome opposition

In addition to the government’s subversion of the agreed upon justice process, there remain significant gaps in the commissions that need to be addressed.  First and foremost, the commissions lack a concrete methodology and approach to the transitional justice issues at hand. There are no clear plans as to how either of the commissions will operate, and their works have been stalled by questions of political legitimacy, especially by the Maoists (of all factions) who oppose the February 26 verdict.

Such opposition, along with a high-level political compromise to review the court verdict, may ultimately polarise the actors in the commission process resulting in continued stagnation. Meanwhile, the victims’ community has been seeking the truth and demanding reparation and justice for those affected by conflict-era violations. To meet these demands, the commission must be powerful, independent and reach every family and individual victim across all 73 districts to effectively engage them in the transitional justice discourse.

Till date, the transitional justice debate in Nepal has been taking place between the human rights community focused largely on prosecution, and a political class seeking to avoid accountability at any cost. Victims’ agendas have been largely absent from that discussion as victims have not been given any agency in any of the transitional justice processes. While the criminal justice system has failed to tackle impunity, no other process has emerged to recover the truth and provide restorative justice. To address this gap, the commissions’ mandates should explicitly include the independent investigation of conflict-related cases and the development of a comprehensive reparation programme to establish the facts of past violations and create support mechanisms to move forward.

Resolve contradictions

For conflict victims, the majority of whom live in rural areas, Nepal’s transitional justice process has been a failure. There is no constructive debate to address their continued victimisation or livelihood challenges and little effort has been made to ensure that transitional justice processes work at the local level. Laws and transitional commissions alone cannot address victims’ economic and social needs. The approach of both the commissions, the political deals that surround them and the disregard for the recent Supreme Court verdict disrespect both the Comprehensive Peace Accord (CPA) and the dignity of the victims. The government and political parties must come up with solutions through dialogue with the victims’ community and must accept the failure of the authorities to gain victims’ trust so far.

Though there is no disappearance law in Nepal, families of the disappeared wish to bridge the transitional justice gap by engaging constructively with the Disappearance Commission. For that, there is a need for strong political commitment. Otherwise, both the commissions are likely to be lost in transitional politics. As of now, the commissioners themselves are confused and ill-equipped for their role. Recently in Bardiya,  when conflict victims attempted to file a First Incident Report with the police, it was rejected. The police said that conflict-era cases should be investigated by the TRC, which contradicts the recent Supreme Court directives.

Lawmakers, political parties, security institutions, ministries and line agencies must clarify their roles in dealing with conflict era issues. The contradictions between the CPA, the Interim Consitution 2007 and the court verdicts must be reconciled. Unfortunately, instead of clarifying their roles, which would have helped build confidence among victims, the commissioners have spent the past four months complaining to the media about their lack of office, staff and necessary resources and procedures. Inspite of such coordination problems among authorities, conflict victims seek to engage critically with the both the commissions if these mechanisms are ready to clarify their way forward.

Unanswered questions

To begin with, both the commissions must develop a working modality and policy to engage with victims and their associations. Victims’ networks seek assurance from both the commissions that they will respect nationally and internationally established principles of transitional justice.

Still, there are many questions that remain unanswered. They are: How will the commissions ensure a victim-centred approach in their operational work, including the plan of action, roadmap, and strategies? Will the commissions engage with other institutions, specifically with the National Human Rights Commission, security forces, political parties and other agencies? Will expectations (time-line, resources, content) of their engagement be shared with conflict victims, including with victims who are living in rural areas far from Kathmandu? How will the commissions set their priorities around a range of issues related to truth, reparation and criminal justice? What are the modalities through which the commissions will develop their regulations and rules, guidelines, and operating procedures? Will they be developed in broader consultation with victims ensuring their meaningful participation at all stages? Will there be universal access to the rules and procedures of the commissions (structure, victim and witness protection, outreach policy, protection of data and evidence) once developed? How will the commissions ensure an institutional and physical environment that will allow all victims—including children, persons with disabilities, women, and victims of sexual violence—to express themselves securely and appropriately?

Civil society and the international community should develop their strategies of engagement with the commissions only after ensuring that the commissions are committed to addressing these issues in detail, since a credible transitional justice process cannot start without the minimum compliance with these pre-requisites.

Victims are the engine of any transitional justice process, in the sense that they are the crucial constituency in terms of being both the key sources in testimonies and the primary beneficiaries of any process. The needs of the nation and the state cannot be addressed without dealing with the needs of victims and this truth must be recognised even in the face of the ongoing earthquake crisis.

Bhandari is the general secretary of Conflict Victims Common Platform