Justice delayed is justice deniedDelay in pursuance of transitional justice is violating victims’ ‘right to effective remedy’
Despite continuous advocacy from the conflict victims and human rights communities in Nepal, the truth and justice seeking process related to decade long armed struggle between the government and the Maoist rebels is taking longer than anticipated. Considering the current roles and functions of Truth and Reconciliation Commission (TRC) and Commission on Investigation of Enforced Disappeared Persons (CIEDP), it can be predicted that justice seeking process might take even longer due to lack of broader political commitments, legal and institutional clarities around the investigation of conflict era human rights violations, and broader awareness among key stakeholders regarding the importance of ensuring justice to conflict victims. In this backdrop, delayed transitional justice (TJ) is not justice as it promotes continuous traumatisation of conflict victims and also sabotages people’s faith in country’s overall justice and reconciliation system.
Debates in transitional justice
As per United Nations definition, TJ is “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” In simple terms, TJ is justice associated with periods of political change. Mechanisms used for smooth transition of a country from its violent and abusive past to its secure and peaceful future are what TJ comprised of. While talking about Nepal, even after 11 years of ending its decade long armed conflict, it is still in the process of settling its past. Regrettably, the scars of the conflict left imprinted on thousands of Nepali are still fresh. Many victims of gross human rights violations such as rape, torture, and extra judicial killings along with families of more than 17,000 killed and 1,300 disappeared are still waiting for justice.
Assessment of actions taken by government to implement the Comprehensive Peace Accord (CPA), shows that the issue of transitional justice has been consistently undermined over implementation of other issues such as arms management, integration of combatants, the elections of Constituent Assembly, and promulgation of the new constitution. Therefore, it took more than eight years to merely establish the TRC and CIEDP. The mandates of these too have been extended twice without any reformation made to their existing provisions that are considered as hindering factor to justice and reconciliation process. Even the Supreme Court’s order to remove amnesty provision for gross human rights violations has not been addressed yet. So far perpetrators of only two war crime cases have been convicted by criminal justice system and not a single case from among more than 60,000 reported cases has been settled by established commissions. Eleven governments have taken to the office so far since the signing of CPA. Among these three coalition governments were led by the Maoists. Given this fact, it can be pronounced that even the leading actors of the conflict have treated TJ as subsidiary issue.
How can a state sustain peace where a chunk of population is still living with conflict repercussions?.. Not addressing public’s remorse has a high risk of radicalising the population in pursuit of justice. The recent report of Rule of Law Index that ranks Nepal in 58th position indicates its improving performance in this domain. But how strong can the rule of law be in a country where thousands of perceived perpetrators of war crimes are still not brought to justice? Many gross human rights violators are living life without providing reparations to the victims; some are even enjoying better position in societies without having sense of guilt for their actions. Hence, given this context, Nepal carries threat of growing lack of trust among its citizens towards state bodies leading to apathy and cynicism in larger mass. Delayed transitional justice is still holding the picture of society where people’s status and power determines degree of laws’ applicability in their life.
Stumbling block to reconciliation
Reconciled future needs past adversities to be addressed. When you are ignored, your stories unheard, you can never forgive your wrongdoer(s) and the longer it takes, the harder it is to let down the wall of resentment and hatred. Whereas timely acknowledgement of the pain inflicted even in grave cases can lead to forgiveness and coexistence. Rwanda where 800,000 to 1,000,000 citizens were exterminated in an ethnically motivated genocide in a mere three months’ time span is today one of the growing economies in Africa. It is also the country where its local transitional justice mechanism, Gacaca court was able to prosecute 1.1 million cases within 15 years of the genocide. While it cannot be solemnly claimed that all the achievements that the country has made post-genocide is all because of timely addressed grievances, it can also not be denied that a country ingrained with hatred and animosity among citizens because of their past could not have move ahead in such path of growth.
Keeping aside effects of delayed justice in the larger national community, and solely concentrating on victims; it can be found that their rights too are still being violated. Delay in pursuance of transitional justice is violating victims’ ‘right to effective remedy’ as mentioned in Article 8 of the Universal Declaration of Human Rights 1948. Furthermore it is violating the rights of victim of crime as stated in article 21 clause (2) of the Constitution of Nepal. If we keep victims living with trauma then their “rights to the enjoyment of the highest attainable standard of physical and mental health” (Article 12, International Covenant on Economic, Social and Cultural Rights) is also being violated. These are just those rights which are in direct violation; failure in realisation of these rights might have also resulted in violation of other different rights of victims.
Delivery of justice comes with high responsibility and so it is not a task to be completed in a day or so specifically in a country going through political transition. Nevertheless delay in justice itself is injustice to victims which has threatening consequences to country’s peace and development. It is not possible to create a strong democracy with sustainable peace without adequately settling the damages made in the past. Hence, transitional justice should no more be state’s secondary concern or else it has to prepare itself for more detrimental circumstances.
Authors are associated with Centre for Social Change, a Kathmandu based social think-tank