Wednesday, 27th August 2014

The Hague Awaits...


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A few days ago, the long awaited Truth and Reconciliation Commission (TRC) and Enforced Disappearance Commission Bills were registered at the Legislature Parliament for the formation of a TRC and Enforced Disappearance Commission. Both had been promised by the Comprehensive Peace Accord and the Interim Constitution in order to prosecute and punish war era human rights abusers. They pave the way now for the formation of the much delayed transitional justice mechanism. Since the registration, however, the topic has become a huge issue in both national politics and among the international community including the UN. The action of the government clearly followed much len-den among the major political forces, and it has ignited more dissatisfaction than appeasement among the victims of the decade-long Maoist conflict. Experts have argued that the Bills fail to honour the recent Supreme Court verdict that asked the government to comply fully with international standards in the formation of a transitional justice mechanism. The victims of the conflict have viewed the proposed Bills as an excuse for granting blanket amnesty to those who were involved in serious cases of human rights violation. The Bills, therefore, clearly demonstrate that our political leadership has no real commitment to the establishment of a genuine transitional justice mechanism.

Investigations into and prosecutions for grave human rights violations committed by the security forces and by the then Maoist rebels during the conflict era are long overdue. Perpetrators continue to argue for a blanket amnesty under the pretext of achieving national unity and peace. However, how could a transitional justice mechanism formed without ensuring due representation and participation by the conflict victims possibly bring about sustainable peace in our country? Do the people of Nepal not have a right to know the truth about what happened during the armed conflict, which affected them and their country? Should this not be through a genuine truth process, and should every single person not co-operate? Why especially should the Maoists, who were major actor in the conflict always oppose this idea? What should be the ultimate goal of the future TRC? Is it not to establish the truth? Is it not to achieve justice? There are several points that I wish to elaborate on here.

Firstly, there is no doubt that establishing the truth about what happened in the ten year long conflict and achieving justice must be at the very centre of the TRC process. It has to be the departure point towards a sustainable peace. It must be able to produce a road map for political and institutional change and, most importantly, must be part and parcel of a new greater democratic debate. It must be able to break the silence that surrounds the suffering of both victims and survivors of past oppression: it must draw from the perpetrators an acknowledgement of their crime and bring them to a court of justice. Reconciliation via the TRC must provide a historic bridge between a divided society of the past, characterized by conflict, untold suffering and injustice, and a society of the future founded on the recognition of human rights, democracy and the peaceful co-existence for all Nepalis. The TRC process must be seen as the first test for the establishment of the rule of law. That raises immense questions. How do the new bills intend to achieve these goals, and are the politicians truly sincere even in hoping that they do so?

Secondly, establishing a TRC in a conflict-ridden society is not aimed at revenge but at establishing truth and justice. It demands great political understanding and mutual cooperation. It is, therefore, a great shame that the UCPN (Maoist) top brass is refusing to co-operate. The co-operation of all is essential if truth and justice are to outweigh all other political considerations. How will the new bills on the table ensure this? Are they clear in what they are seeking to achieve? Are we clear ourselves about what we wish the TRC to achieve? Those individuals and leaders who were involved in the abuses, including the Maoists, should co-operate fully and play the role of helpers of the TRC for the sake of justice and a durable peace. The TRC must have jurisdiction to investigate the actions of all individuals who were seriously involved in the human rights abuses. Maoist individuals, leaders of political parties and security force personnel were involved in acts of enforced disappearance, killings and torture, and all must eventually be tried. The TRC must, therefore, be a strong and autonomous body. No one must be spared if we seriously wish to end the ongoing culture of impunity and lawlessness. More than 300 people are recorded as having disappeared at the hand of the Maoists, but the new TRC Bill appears one-sided and ill intended as it blames only the security forces for enforced disappearances.  Does this not need an urgent rethink?

Thirdly, the TRC must not be seen as a replacement for the criminal justice system. It must not be used to prevent, replace or delay criminal investigations and prosecutions for serious abuses. It is great that some individuals alleged to have been involved in abuses and killings have already been arrested, and the state has recently started to investigate. After all the pressure from the media, conflict victims, pressure groups and the international community, the government is finally taking some action. It is a most welcome step, which should have happened long ago. Recently, the filing of a lawsuit against 13 Maoist cadres accused of murdering Krishna Prasad Adhikari of Phujel, Gorkha, during the armed conflict is a sign of a new beginning for the nation in promoting and protecting human rights especially against the culture of impunity. It is a national shame that the UCPN (Maoist) has announced nationwide protests against the government’s move to lodge cases against the cadres implicated in the murder. This lawsuit is an important beginning. The new TRC process and the criminal justice system must proceed side by side in investigating, prosecuting and punishing all abusers. International human rights norms and practices and the traditions of justice demand this.

Fourthly, the consultation and participation of victims in the TRC process are its most essential aspect. The TRC process needs to be victim centered and non-political. At the same time it should respect the right to a remedy and to accountability by way of criminal prosecution. Victims must be granted justice while ensuring that impunity is not promoted. The TRC should not become a tool to victimize further the victims who have already suffered enough. Nor should it be a tool to clear perpetrators of their wrongdoing. It must not become a showpiece in order to cover up abuses that took place in the conflict era. One important question must be asked: do the proposed bills ensure the victim's representation and participation? Did anybody consult the victims as to what they wanted and how they wished to see the perpetrators punished before the Bills were tabled at the house? Do the Bills not need a re-write?

Finally, a blanket amnesty can never be allowed where serious abuses of human rights are concerned. This is the international standard and international practice. According to international human rights law, no amnesty is permitted for gross violations of human rights. Nor also are other measures permitted that might block criminal investigation and prosecution for such violations or deprive victims of the right to an effective remedy. In this regard, some articles of the TRC Bill are inconsistent with international law and human rights since they do talk about an amnesty for serious crimes. Such an amnesty would not only violate some core principles of international law but would also weaken any foundation for a genuine and lasting peace and the establishment of the rule of law. The perpetrators must be punished for any serious violation of human rights such as extrajudicial killing, enforced disappearance, rape and torture. In such serious cases, the perpetrators must be punished even though they may have confessed their wrong doings, have asked for mercy, been forgiven by their victims, who in turn have even been compensated. The present provision of the Bills regarding this issue must be revised and made clear.

I strongly believe that if the TRC Bill contains fundamental flaws and gaps and does not meet international standards, it must be revised. There is no need to rush. The nation can wait if good can come from further delay. It is time for us to change our culture and our attitude to decisions made in hachuwa when we do not know or cannot anticipate the consequences. The future of peace and prosperity in our country depends very much on the success of the TRC process. We ourselves must be clear what we really wish to achieve through the TRC. We must be clear what TRC represents and what it is there for. I further believe that it is the duty of every citizen to co-operate with the TRC process. It will ultimately be good for all including the perpetrators. The latter, whoever they are and however powerful they may be, must first be punished and their victims’ needs must be addressed and compensated for. These must be the priorities of our future TRC. If we fail to achieve this through our domestic mechanism, the case can, of course, be internationalized. The Hague is not too far from here!

Dr Basnet is a Lecturer and Researcher in International Human Rights Law.


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