Evasive Maneuvers

On February 5, 2018, just two days before the expiry of the extended tenure, the Cabinet extended the mandates of TRC and CIEDP by one year, for the second time. However, on the same day, the National Human Rights Commission of Nepal (NHRC) called on the Government to amend the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) in line with international standards. The TRC and CIEDP have fallen short of international standards, both in constitution and operation, despite repeated orders by the Supreme Court of Nepal. On January 2, 2014, the Supreme Court ruled unconstitutional the TRC Ordinance adopted in 2013 by the Maoist-led Government, which provides for amnesties to persons deemed responsible for serious human rights abuses during the country’s civil war of 1996-2006. However, the Government effectively ignored the Court order and promulgated the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act, 2014 (TRC Act) into law on May 11, 2014. Once again, on February 26, 2015, the Supreme Court struck down the amnesty provision in the TRC Act.

To allay the concerns of the international community that Nepal may leave those who committed serious crimes during the Maoist insurgency unpunished, Prime Minister Khadga Prasad Sharma Oli, during a luncheon meeting with foreign diplomats at his official residence at Baluwatar, Kathmandu, on March 27, 2018, remarked “There will be no blanket amnesty for cases of serious violation of human rights and humanitarian laws. To fully address the issue of transitional justice, the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons are currently engaged in the country.” Similarly, Attorney General Agni Kharel, addressing an interaction organized by NHRC in Kathmandu on April 11, 2018, noted “We’ll try our best to make the truth-seeking mechanism robust.”

On July 9, 2018, speaking of Nepal's peace process as highly successful on the contemporary global scene, Minister for Foreign Affairs Pradeep Kumar Gyawali at the Dinner hosted for the Diplomatic Community in the Capital, Kathmandu observed, “Our own experience of the peace process may be useful to the countries in transition and those gone through conflict (sic). We would be happy to share our experience as a uniquely successful and home-grown brand of the peace process and contribute to peace building elsewhere.”

On May 17, 2018, in a historic development, the two major national Left political parties – the Communist Party of Nepal-Unified Marxist-Leninist (CPN-UML) and the Communist Party of Nepal-Maoist Centre (CPN-Maoist Center) – had merged to form the Nepal Communist Party (NCP). However, on May 31, 2018, TRC officials argued that the CPN-UML – CPN-Maoist Center merger and formation of NCP had affected the investigation into the war-era cases of human rights violations as the local governments in many places were now reluctant to cooperate in the investigation process. By joining forces with CPN-UML to form a single communist force, TRC officials said, the former rebels now wielded their new-found political influence at the local level to hinder war crimes’ investigations. According to the TRC, local Government representatives in many places had grown reluctant to support the Commission, which is currently conducting field visits to finalize the reparation policy and to carry out preliminary investigation into the complaints registered by victims. Manchala Jha, who leads the provincial office of the Commission in Province 1 and 2, claimed “The party merger had made the investigation process tougher. We are getting cold response from the local governments who are our first contact at the local level.”

Meanwhile, representatives of the Conflict Victims Common Platform (CVCP), an association of 13 organizations working for conflict victims, asserted, at a meeting with TRC officials in Kathmandu on January 9, 2018,  that members of TRC should resign and join their movement if they could not do their job of investigating war-era violations. Further, on January 10, 2018, CVCP representatives reached the CIEDP office to inquire about the progress made by the commission in its three-year tenure, and gave ultimatum to CIEDP officials to complete investigations on time or quit.

However, on January 29, 2018, nine days before the end of their three-year tenure, TRC and CIEDP requested the Government for another extension of their term. Both the commissions had blamed non-cooperation from the Government and the political parties for their poor performance in looking into the war-era cases. Lack of resources and mandate to spend, coupled with inadequate staff and non-cooperation from political parties, were cited as reasons for failing to investigate even a single case completely since the formation of the two bodies in February 2015. As of February 2018, TRC has received 60,298 complaints of human rights violations, and CIEDP has received 3,093 complaints of enforced disappearance. Though they have stated that investigations have been initiated into some cases, not a single case has been recommended for prosecution till date.

In the meantime, urging the Government to come up with a law criminalizing conflict-era torture and enforced disappearance in order to prevent a situation where conflict-era victims seek justice through international institutions, NHRC Chairman Anup Raj Sharma warned on February 5, 2018, “If the laws are not amended to ensure justice within the country, the conflict-era victims will be forced to seek justice from beyond the borders. It won't do any good to the country. So, we ask the government to heed our suggestions and move forward in an appropriate way for ensuring transitional justice.” He also urged all authorities concerned, including the Government, to suitably amend the TRC Act.

Likewise, on April 16, 2018, officials from the CIEDP urged Sher Bahadur Tamang, Minister for Law and Justice, to expedite amendments to the existing Act on transitional justice, saying that the lack of required laws was responsible for the sluggish investigation process. Further, blaming the ruling leaders for delaying justice to conflict victims, CIEDP Chairman Lokendra Mallik, observed at Kathmandu on June 18, 2018, “We have not been able to work as efficiently as we had thought due to the negligence on the part of the Government in providing necessary vehicles, funds and human resources, and in making necessary laws. Some of the cases are in their final stage but there are no laws that say how to prosecute the guilty.”

Meanwhile, rejecting the Draft Amendment Bill on the TRC Act tabled on June 28, 2018, which failed to address any of their demands, CVCP Chairman Bhagi Ram Chaudhary at an interaction held on June 29, 2018, at the NHRC Office, Kathmandu, declared, “After waiving 75 per cent of the sentence and other departmental actions faced by the perpetrators, there will virtually be no punishment left. Cases related to serious human rights violations should be addressed through the criminal justice system.” On the occasion, NHRC Chairman Anup Raj Sharma stated that a ‘syndicate’ of political parties was trying to sabotage the whole transitional justice process with an amendment draft that had been ‘translated’ and ‘guided by a motive’: “The draft is focused at providing immunity to perpetrators, and the whole design is to tire the victims. So we should not stop exerting pressure.”

International human rights bodies also expressed the concerns of conflict victims in Nepal. Human Rights Watch (HRW) in its World Report 2018 released on January 18, 2018, noted that conflict victims are yet to get justice in Nepal. According to the report, flaws in the Commissions’ mandates were not remedied, in spite of several Supreme Court directives. Due to these shortcomings, the international community chose to remain silent on the transitional justice process until the laws were brought into line with international norms. Further, warning that Nepal's legal efforts to deliver justice to victims of its bloody civil war failed to meet international standards and risk letting the worst offenders go unpunished, HRW and the International Commission of Jurists (ICJ) issued a joint statement on July 8, 2018. Human Rights Watch Asia Director Brad Adams stated, "For a successful, internationally accepted process, the authorities in Nepal should focus on providing justice to victims, not engage in trying to get perpetrators off the hook." Similarly, Ian Sedierman, Legal and Policy Director at the ICJ observed “Without a justice process that meets international standards for prosecuting the most serious crimes, such as torture and enforced disappearances, anyone suspected of such crimes in Nepal risks arrest, extradition, and prosecution in the many countries that are committed to prosecuting such crimes.”

It has been 12 years since the Comprehensive Peace Agreement which formally ended the war in Nepal. The mere extension of the terms of the TRC and the CIEDP is likely to prolong the justice process without meaningfully improving the chances that victims will have their demands for justice, truth, and accountability met. Moreover, Prime Minister Oli who served as the premier in 2015 and 2016 has done little to prioritize justice for war crimes. Unsurprisingly, there are apprehensions that Oli will not address the victims’ grievances this time either, as doing so could lead to the prosecution of coalition partners and the collapse of the Government. Justice will continue to evade the victims of the protracted conflict in Nepal.