Victims’ critical engagementTransitional justice has been a stated priority throughout Nepal’s peace process, following the end of the decade-long conflict in 2006.
Transitional justice has been a stated priority throughout Nepal’s peace process, following the end of the decade-long conflict in 2006. However, despite this, it has taken nearly 10 years for the establishment of two commissions responsible for investigating war-era crimes. The Truth and Reconciliation Commission (TRC) and the Commission for the Investigation of Enforced Disappeared Persons (CIEDP) have thus been formed and have enjoyed rhetorical political support. The problem lies in the fact that support remains confined to rhetoric; the government has never prioritised transitional justice in its national agenda, preventing the commissions from fulfilling their mandates. The stalled transitional justice process has eroded trust between victims’ advocacy groups and the two commissions.
Utilising an opportunity
While the commissions were previously set to be dissolved by February 2017, they have recently received a year-long extension to finish their work. It is critical that this opportunity is not wasted. The commissions, the government, and the international organisations must listen to victims’ groups to ensure that the transitional justice process results in a broad transformation aimed at meaningfully addressing the causes and consequences of the conflict.
Transitional justice in Nepal has been held back by politicians who have used justice as a political bargaining chip, and by international organisations that have imposed a global agenda and ignored local needs. The current process remains stubbornly rooted in the state tradition of hiding the truth: Even today, perpetrators from both sides of the conflict are actors in the transitional state structures and in leading political parties.
Political parties and security forces offer no political support that could potentially enable the commissions to function independently. In fact, some commission members are close to the political parties and security forces and play a part in leaking the work of the commissions to the public. This created huge problems during complaint registration and may have a serious impact on the investigation process. The security of victims and witnesses, and the integrity of evidence collected could be compromised. Members of the commissions who do not display sensitivity, ethical behaviour and discipline have no right to hold their positions. Victim groups are continually demanding the immediate resignation of corrupt commission members who are destroying the process of transitional justice. It is the duty of the authorities to investigate abuse of power and promote fair functioning.
Setting the agenda
Support from the international community could have mitigated some of the challenges the commissions faced, but this support was withheld in protest of the amnesty provision in the commissions’ mandates. Rather than working with victims and their families to determine a way forward, these agencies have prioritised rigid notions of accountability over the needs and perspectives of those impacted by conflict. International agencies have fully controlled the transitional justice debate by imposing global narratives that have not been localised within the Nepali context. For local activists, focusing only on accountability ignores both the rights to truth and reparation, as well as the structural injustices that allowed the conflict-era crimes to occur. The focus on accountability by the large international organisations has led to a confused and inconsistent response from smaller civil society organisations. Human rights groups have been preoccupied with the question of whether or not to support the commissions, resulting in an ineffective response that neither addresses the flaws in the formal process nor supports conflict victims’ immediate needs.
With international organisations and political parties setting the agenda, the current top-down approach to transitional justice ignores the demands of victims and the activists who represent them. The debates held by political parties on issues of transitional justice, and those held by international agencies on amnesty and prosecution neither address victims’ needs nor support their livelihoods. The gap in understanding between political parties, human rights groups, and victims’ advocates has only grown deeper over the last decade.
Conflict victims and activists across the country are speaking out about their needs and standing up for their rights. They seek a broader range of reforms than the accountability agenda set by the international community. These victims and activists demand victim-centred transitional justice mechanisms that address structural inequalities and conflict-informed reparations. There is also a demand for historical commemoration of the conflict.
In addition to speaking out for reform, conflict victims have chosen to adopt a strategy of critical engagement to work with the commissions. A month after the commissions were formed, the National Network of Families of the Missing and Disappeared (NEFAD)—a key player in the victims’ movement—introduced and adopted the critical engagement position through its Bardiya Declaration on March 2015. Kathmandu-based human rights group adopted a non-cooperation policy and appealed for a boycott. Other victims groups rejected the idea of a boycott.
Despite the flaws of the commissions, conflict victims see them as the only means by which they can address conflict-era injustices. As a result, victims’ groups such as NEFAD and CVCP have encouraged all conflict victims to register their cases with the commissions. Groups have also launched efforts in rural communities to ensure that families understand their rights and are able to file complaints. As a result of this nationwide mobilisation, people have brought 58,052 cases to the TRC and over 3,000 cases to the CIEDP. The number of people willing to engage with the commissions demonstrates the need and desire for justice and reconciliation. In addition, victims’ groups have put pressure on the government by closely monitoring the commissions, and voicing criticism when appropriate. Groups also propose solutions to make the process more victim-centric.
On February 2017, NEFAD’s Kathmandu Declaration made the strategic decision to work with the commissions—despite their flaws—in order to advocate truth, justice, reparation and commemoration. Victim groups have remained critically engaged with the commissions since their formation. They have also been monitoring and challenging the activities of the commissions, and have made a historical achievement of recording over 60,000 cases of human rights violations. Both the commissions must adopt a victim-centric, rights-based perspective to ensure the effective participation of families and their representative organisations.
This is the time to expand the boundaries and the space for transitional justice to include conflict victims and other marginalised groups. A more inclusive transitional justice process will move the debate beyond a narrow focus on issues of accountability towards the inclusion of a full range of injustices suffered by conflict victims. While victims want to see perpetrators brought to justice, they also need recognition of their suffering, comprehensive reparation and meaningful reforms that advance social justice.
Bhandari is an activist and a PhD researcher at NOVA Law School, New University of Lisbon