Dilemmas of Transitional Justice

Earlier, on June 13, 2016, another transitional justice mechanism, the Commission of Investigation on Enforced Disappeared Persons (CIEDP), which started receiving complaints on April 14, 2016, extended the time period for registering cases related to conflict-era disappearances by another month, as complaints continue to pour in. As many as 4,000 forms were circulated in all 75 Districts, where disappearance incidents occurred during the decade-long Maoist insurgency. The Commission had received 2,084 complaints as of June 12, 2016.

TRC and CIEDP were formed in February 2015 in the spirit of the Interim Constitution of 2007 and the Comprehensive Peace Agreement of 2006, to probe instances of the serious violation of human rights and find the status of those who were disappeared in the course of the armed conflict between the State and the then Communist Party of Nepal-Maoist (CPN-Maoist) from February 13, 1996, to November 21, 2006. According to the Office of the United Nations High Commissioner for Human Rights (OHCHR) Nepal Conflict Report 2012, between February 1996 and November 2006, the conflict between the Government of Nepal and the CPN-Maoist left over 13,000 people dead and 1,300 missing.

On May 19, 2016, in a major development in Nepal's prolonged process of transitional justice, TRC started preliminary investigation on complaints received from conflict victims. TRC commissioner Madhavi Bhatta, stated on the occasion, "We have distributed 14,581 complaint forms from our office and the local peace committees and received 7,789 complaints so far. Therefore going through all the complaints is a crucial step toward investigation."

However, at a time when the victims and international human rights agencies have been urging the Government to bring the Transitional Justice Act on par with international standards, five Maoist parties - New Force Nepal led by Baburam Bhattarai, CPN-Revolutionary Maoist led by Mohan Baidya, CPN (Maoist) led by Matrika Yadav and Revolutionary Communist Party Nepal led by Mani Chandra Thapa, besides ruling Unified Communist Party of Nepal-Maoist (UCPN-M) led by Pushpa Kamal Dahal - in a joint statement on April 21, 2016, called on the Government to scrap conflict-era cases, claiming that such cases violated the Comprehensive Peace Accord (CPA) of November 12, 2006. Further, a group of Maoist cadres, who were either convicted or are under prosecution in various courts for war-era crimes, on April 25, 2016, formed the 'Association of Court Victims on People's War Cases' at a press conference in Kathmandu and announced plans to protest against court verdicts and ongoing prosecutions.

Significantly, on May 19, 2016, ten Maoist parties at a joint convention in Kathmanduunited to form a new force under the former rebel commander Pushpa Kamal Dahal to give birth to what they have decided to call the Communist Party of Nepal-Maoist Centre (CPN-Maoist Centre). Addressing the function organized to announce the unification, Chairman Dahal declared, "The days of conspiracy against the revolutionary agenda of republic, secularism and proportional representation are over. This unification is a message loud and clear that the days of people's victory are here. This unification guarantees that the transitional justice mechanisms will function in line with the CPA." Urging Baburam Bhattarai, former UCPN-M leader and Coordinator of Naya Shakti Nepal to come within the unified party, Dahal said "Baburam Bhattarai was head of the people's government during the war and his orders were behind people's sacrifices and the changes in the country. So, he will not be free of accountability just by saying that he has now taken another path. Therefore, I urge him to join the new Maoist force rather than promoting the bourgeoisies."

Earlier, on May 5, 2016, UCPN-M signed a pre-emptive nine-point agreement with the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML), the senior partner in the ruling alliance. The fact that five of the nine points in the agreement address issues of transitional justice shows just how worried the Maoists are about having to answer for the crimes they committed between 1996 and 2006. One of the points of the agreement obliges CPN-UML and the Maoists to amend the laws on transitional justice within 15 days, so that they 'reflect the spirit of the CPA'. The two leaders also agreed to register the ownership of the lands that were transacted on the strength of household papers during the conflict era on the basis of those same documents. They also agreed to immediately initiate the process to withdraw or give clemency on insurgency-era cases and other 'politically-motivated' cases filed on various occasions.

Expectedly, slamming the deal between ruling parties, UCPN-M and CPN-UML, Human Rights groups including Amnesty International, Human Rights Watch (HRW) and the International Commission of Jurists (ICJ) on May 13, 2016, in a joint statement accused the two parties of attempting to 'wash away the crimes of the conflict' with the new agreement. Expressing the same view, on May 27, 2016, Nepali Congress (NC) President and former Prime Minister Sher Bahadur Deuba declared, "We cannot stop taking action against those accused of heinous crimes with only excuse (sic). They can be punished under different international laws too. So action should be taken against them." Further, TRC Chairperson Surya Kiran Gurung noted, on June 4, 2016, "Though there are talks about granting amnesty at the political level, cases related to serious human rights breach bear significance in wider international scenario, and there is no way amnesty will be granted in each case." Earlier, on January 7, 2016, a five member Supreme Court (SC) bench headed by Chief Justice Kalyan Shrestha asserted that there should not be any amnesty or clemency to murder convicts.

Expressing their fear at a discussion programme held at Mahendranagar of Kanchanpur District on June 16, 2016, conflict survivors said that they were still fearful of lodging complaints, as no assurance of maintaining confidentiality of personal information had been given. The participants claimed that most the families of conflict victims had not yet registered their complaints after it was found that the responsible agencies were disclosing the names of the complainants. Conflict Victim Society Kanchanpur Chairperson Dharma Singh Chaudhary noted, "Many victim families have not come to lodge their complaints with the rise in threats and intimidations after the disclosure of confidentialities of personal information of complainant (sic)."

However, on June 7, 2016, Professor Bishnu Pathak, spokesperson of CIEDP, claimed, "Initially, there were fears among victims and human rights defenders that the commissions might not be victim-centric. There was mistrust initially but we have overcome that situation. The way we are receiving complaints has encouraged us." Similarly, TRC Chairperson Surya Kiran Gurung noted, "Political comments on transitional justice could create some confusion for the victims but TRC is firm in its intention of carrying out its tasks as per the provisions of the CIEDP and TRC Act. TRC is clear that any amendment to the existing act should be only for meeting international standards and adhering to court verdicts. We are not bothered by politicians' comments or actions as we are governed by the laws."

Combatants are not the only ones under the scanner of transitional justice mechanisms; complaints have also been filed against various high ranking officials, including former Prime Ministers. On May 26, 2016, family members of 17 laborers who were killed in Kotwada, Kalikot District, on February 23, 2002, on suspicion of being Maoist combatants, filed a complaint at the TRC against the then Prime Minister Sher Bahadur Deuba and the then Royal Nepal Army Chief, General Rookmangud Katawal. Similarly, on June 12, 2016, Krishna KC, a permanent resident of Baglung Municipality Ward No. 3, lodged a complaint at the TRC against former King Gyanendra Shah and five former Prime Ministers including Girija Prasad Koirala, Surya Bahadur Thapa, Lokendra Bahadur Chand, Krishna Prasad Bhattarai and Sher Bahadur Deuba, seeking justice for his detention by the Nepal Army (NA) for 810 days during the insurgency; and on June 16, 2016, a woman from Taplejung District, who received deep injuries to her thigh and knees [the identity of the victim and other information regarding this case have not been reported in any open source] during the Maoist insurgency, registered a complaint against former King Gyanendra Shah and Prime Minister KP Sharma Oli at the TRC through local peace committee in Jhapa District, saying she had not received relief till date and demanded justice.

Despite the political developments in the country, CIEDP Chairman Lokendra Mallick, speaking at a function organized by the Social Justice and Human Rights Committee of Parliament on June 17, 2016, claimed that the Commission will try to complete all the investigations in the remaining eight months before its deadline. Speaking at the same function TRC Chairperson Gurung observed, "A situation might arise tomorrow when our leaders cannot visit foreign countries freely if conflict-era cases are internationalized by the victims."

Since the end of the internal conflict in Nepal, there have been demands for transitional justice measures in the country. However, despite the establishment of the TRC and CIEDP, impunity for violations committed both during the conflict and in the post-conflict era remains entrenched in the country's political culture. It remains to be seen whether Nepal is able to reconcile the demands of political stability and continuity, on the one hand, and of justice for war era excesses, on the other, to establish an enduring constitutional and political order that will meet the demands of equity and governance.