Establishing a Truth and Reconciliation Commission (TRC) to achieve transitional justice in a post-conflict situation is not a new phenomenon. At international level, precedents were set at Nuremberg and Tokyo where Nazi and Japanese military and political leaders were tried before international military tribunals for war crimes committed during World War II. The International Tribunals for the Former Yugoslavia and for Rwanda were the first such courts to be established in the post-War period. Then in July 2002, the International Criminal Court became the first permanent mechanism for transitional justice. It has the jurisdiction to try individuals responsible for international crimes including genocide, war crimes and crimes against humanity.
In recent weeks there have been two highly significant developments in Nepalese polity. The Supreme Court has refused to review its earlier decision to cap the extension of the Constituent Assembly’s term. Now, if the parties fail to deliver the new constitution by the 27 May deadline, the Assembly will automatically be dissolved. Also, and most importantly, the major political parties have agreed at long last to table the draft bill to establish the Truth and Reconciliation Commission (TRC). Such establishment has been delayed for years, owing to the parties’ divergent views on the terms of the bill. Late though this may be, it is nevertheless a most welcome step. What is not so welcome is news that the major parties have agreed also to remove a clause that would prohibit any amnesty for serious conflict-era abuses. The omission of this clause could throw into doubt the possible effectiveness and fairness of the future TRC in seeking to establish the truth. Will there not be a danger and a fear that the perpetrators may use the TRC as a means of legitimizing their own gross actions during the war?
The political parties have agreed to make the TRC all powerful by granting it the right to recommend the prosecution of those who have committed grave human rights violations during the insurgency. They claim, moreover, that the terms of the Commission will meet international standards. However, there are those who could be tried for crimes against humanity who today are in government and in the Constituent Assembly. They are in fact in charge of the country. Is there not then a possibility that the TRC may become nothing more than a tool capable only of providing ‘victor’s justice’? The future TRC must not be allowed to become a tool for legitimizing gross actions during the conflict, thus allowing their perpetrators to escape.
Approximately 28 Truth and Reconciliation Commissions have been or are being conducted worldwide in countries ranging from Argentina to East Timor and from South Africa to Peru. Following the genocide in Rwanda the courts there tried 7,000 individuals between 1997 and 2002 while at the same time the state was rebuilding its justice system. The challenges were immense, including security issues over the protection of witnesses, a shortage of staff, and allegations of one-sided justice. The South African TRC was in business for 10 years, and there were many public hearings across the country, informing communities of its process. Thousands came forward to give testimony about their experiences as victims, as families of victims, and as perpetrators. The TRC was empowered to grant amnesty and occasionally did so in exchange for testimony or information. However, strict rules were applied to each application for amnesty: victims had the right to oppose any such application and to cross examine the applicant, and there remained the potential for the future prosecution of the applicant if he did not fully cooperate with the TRC. On the other hand, Peru’s TRC investigated the responsibility of terrorist activity over the years 1980 to 2001 including the violation of human rights attributable both to the terrorist organizations and to the state. Reports and recommendations were compiled and presented to the government, but it was later found difficult to execute the recommendations owing to a lack of will on the part of both the authorities, and the politicians.
The effectiveness, therefore, of any TRC must inevitably depend on the likelihood or otherwise of subsequent judicial investigation and implementation of criminal proceedings against those responsible for serious human rights violations and crimes against humanity, thus ensuring justice and reparation for the victims. Its effectiveness must also depend on its own impartiality and competence, on the thoroughness with which it establishes the truth (and manages the increase in tensions during that process), on the fairness of its procedures (lessening the trauma felt by witnesses during testimony), on the extent to which it can rely on other institutions to implement its recommendations, and on the risk of unfulfilled expectations. Nepal must take account of all these issues while forming the TRC and its processes.
Transitional justice is about healing relationships between people within a state. Justice and the reconciliation process are dependent on the active participation and input of civil society in order to make them truly effective. In South Africa, NGO representatives were intimately involved in the design and implementation of the TRC. In Chile, various religious organizations collected numerous judicial transcripts about the disappearances under the Pinochet government that were crucial to the work of the TRC. In Nepal, it is a well known fact that the government and the political parties have been forced, after a five year delay, to table the TRC bill because of criticisms by pressure groups at national and international level such as civil society, academia, the NGOs and human rights activitivists. It is vital now that these actors are guaranteed the right to observe the process, to monitor its fairness, and to offer moral support to the TRC and to the victims that it hears especially during the eventual implementation of the TRC findings.
It is natural for people who have been victimised to demand justice. The aims and ambitions of the forthcoming TRC must be victim-oriented, and the primary focus must be on reparation and the restoration of the victims’ and their family members’ dignity. Furthermore, to prevent future repetition, it must recommend institutional, legal, educational and other reforms that can be processed and implemented through legislative, political or administrative initiatives. In South Africa it was agreed at the outset that victims would be compensated and, in fact, the government did give compensation: however, there is still some controversy about the role of reparations in TRCs. In Nepal, therefore, it is vital that perpetrators are punished for their past actions but that at the same time we create a fair environment in which perpetrators and victims can in future realistically be expected to live next to one another.
Hence our need to ensure that the TRC is not allowed to become an agent of the wrongdoers, designed by them to impose ‘victor’s justice’. To avoid just that in South Africa no side in the struggle was exempt from appearing before the TRC. It heard reports of human rights violations and it considered amnesty applications from all sides, i.e. from the apartheid state to the liberation forces, including the African National Congress. The procedure, process and investigation of our TRC must therefore be non-discriminatory, and non-political. Political leaders, rebels, members of the security forces (individual and institutional), and members of the public who are thought to have been involved in gross human rights violations must be invited for questioning by the TRC without discrimination, nepotism or favouritism. Individuals who refuse to appear before the TRC must face potential prosecution in a court of justice. Victims selected for public testimony must reflect a wide demographic and political spectrum, so that all groups across society can be seen to be represented. The aim should be to construct a community of victims based on shared suffering rather than on gender, age or political identity. Most importantly, special arrangements must be made for dealing with victims of sexual violence.
During the ten-year conflict there were many instances where the behaviour of the armed forces was far from lawful. Not only were officers and soldiers responsible for individual excesses but there was evidence of generalized, even systematic, practices of human rights violation (e.g. murder, extrajudicial executions, sexual violence, torture, and cruel, inhumane or degrading treatment). Not only did such acts constitute crimes against humanity but also transgressions against the norms of international humanitarian law. In the interest of justice, a clear distinction must be drawn between individual and institutional responsibility for such crimes.
The TRC Bill must be passed as soon as possible, and the TRC must be established without further delay. Its procedures must be fair, and it must be guaranteed total independence from politicians and be unaffected by Bhagbanda. The TRC must be led by non-politicians who are well qualified and who represent society as a whole. In South Africa, the proceedings of TRC were made public and were broadcast on television and radio. The immediate impact was profound as visible expressions of human pain, grim accounts of torture and killings, and the exhumation of bullet-ridden corpses helped the whole population to come to terms with suffering that no citizen wished to see repeated.
We must all hope that the forthcoming TRC will play an important role in revealing past human rights violations, in ensuring their investigation and eventual prosecution, in preventing their repetition, and in ensuring full reparation for victims and their relatives. However, a TRC can prove to be ‘double-edged sword’. Used properly, it can perform an important function in bringing a war-torn society together, punishing rights violators and providing justice for victims in accordance with national and international human rights norms. Used improperly, it can become a political tool in the hands of responsible criminals, effectively legitimizing their human rights violations during the conflict, and granting them ‘victor’s justice’ and an easy escape route.