‘We have failed to build pressure on transitional justice’

November 21 marked the 16th anniversary of the signing of the Comprehensive Peace Accord which brought the warring Maoists to mainstream politics. Providing justice to the thousands of victims from the insurgency was one of the major goals of the agreement. However, the victims and their families are still struggling to get justice. Different human rights organisations including the International Commission of Jurists (ICJ) have regularly drawn the attention of the government and the political parties on this matter. Binod Ghimire of the Post talked to Mandira Sharma, a senior international legal advisor at the ICJ, who has long followed Nepal’s transitional justice process, for some insights on the issue. Excepts:

Why do you think the transitional justice process hasn’t progressed much in the 16 years since the start of the peace process?

There are multiple reasons for the delay in the conclusion of transitional justice. Those who were directly involved in atrocities during the insurgency were repeatedly in power. They have wielded an effective veto against a genuine process. Inducting party cadres in state machinery has become a norm after 1990. As a result, state institutions have failed to perform independently and impartially. Take the police and attorney general offices. There is a problem in the judiciary as well.

The same tradition has continued in the transitional justice mechanisms: The Truth and Reconciliation Commission and the Commission of the Investigation on Enforced Disappeared Persons. In addition, the civil society is politically divided, so is the victim’s community. The international community too couldn’t play a strategic role in building pressure for it.

Is transitional justice a purely criminal justice process or does it have a political component?

It is a blend of judicial, quasi-judicial, political and administrative processes. The transitional justice process cannot be concluded only through the criminal justice process.

If transitional justice is a political process, many argue, a political mechanism needs to be set up to facilitate it. Do you agree?

Transitional justice has a political component no doubt. However, there is a wrong perception in the minds of our political leaders that they can decide on what the process should be. The political leadership’s role is to discuss the reasons for the delay in moving forward with the process and develop policies and laws within the parameters of the rule of law and the international principles of transitional justice. But in Nepal political highhandedness has obstructed the entire process.

There is nothing wrong in having a mechanism to facilitate the process. However, the idea here is guided by an intent to dictate the entire process against established legal principles. That can not be acceptable to anyone who advocates for an impartial, independent and objective process.

How is transitional justice different from regular justice process?

The regular criminal process focuses on investigating criminal cases and their prosecution. It doesn’t cover reparation and institutional reforms which are crucial components of the transitional justice process. Some issues could have counted as criminal offences during insurgency but not now. Similarly, the issues like capturing properties during conflict could be settled through administrative processes like compensation.

However, the cases of serious violations of human rights must follow a regular criminal justice process. There must be prosecution in cases of rape, torture, murder, enforced disappearance, war crime and crime against humanity, in line with international laws and Nepal’s obligations. The perpetrators should be booked as per the domestic laws.

There are close to 66,000 cases with two transitional justice bodies. Do you think the commissions can or need to investigate each and every one of them?

Nepal can develop its own strategy. Not all cases need prosecution and detailed investigation. Several can be resolved with compensation and reparations. There is an international practice of adopting a country’s own prosecutorial strategy, whereby Nepal can prioritise some sorts of cases over others. It can say our focus would be cases of mass killings or rapes or the violence against children. However, the selection must be done transparently and in a fair manner.

Even in the cases of serious human rights violations, the perpetrators might not be traced in some cases or there might not be concrete evidence for prosecution even after revealing the truth. Such cases can be concluded through compensation, however, the victims and the larger society must be convinced. Legitimacy must be maintained in every case, which entails consultation, participation of the stakeholders and adoption of the fair and transparent measures. So the number of cases should not be a problem in itself.

What can be done to quickly conclude the transitional justice process?

A lot has already been done behind the scenes to bring the transitional justice process on track. Consolidation of the issues that have been agreed so far is the first step. Promulgation of the new Act or the amendment of the existing Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act is a must as it is the law that gives the framework to the process. The lawmaking process must be transparent, and done with broad discussion and consultation. The Act must adhere to international law and practice, the country’s constitution and other laws.

There must be clarity in the truth-seeking approach, reparation and institutional reforms. It needs to have provisions for prosecution in serious violations of human rights. Promulgation of the Act needs to be followed by filling vacancies in the two commissions. Competent and independent persons should be appointed through a transparent selection process.

Everyone from the victims to the human rights community must be convinced that the leadership in the commissions can do their job fairly and objectively. There is a broader agreement that a Special Court would be constituted for the hearing. However, how it will be constituted is a matter of concern.

Truth revelation and criminal investigation to collect evidence are two different things. So far the commissions have been given both the responsibilities, which is not justified. It would be better to have a separate mechanism for criminal investigation. If we want the commissions to do both, it must be ensured that there are competent people to carry out the job.

There were many progressive provisions in the amendment bill to the Act prepared in 2018 and 2022, even though they retained amnesty provisions. I believe we can find meeting points in the Act towards concluding the transitional justice process in line with established principles.

Do human rights have universal jurisdiction? If yes, under what conditions does international jurisdiction come into play?

Yes, human rights have universal jurisdiction. There are some conditions when it comes into play. The government from a particular country can request the United Nations International Criminal Court to investigate cases of rights abuses from the past. A tribunal could be set by the ICC in such a case. Under the universal jurisdiction, any country can start an investigation against those accused of serious violations of human rights, as was the case with Colonel Kumar Lama.

There is also a possibility that some governments could bar the accused from visiting their countries. Currently, many victims from the insurgency have become citizens of other countries. If they file complaints against someone, accusing them of involvement in human rights violations, the government from the countries can arrest the accused and file charges against the person.

If there is no political willpower to investigate such cases and impunity continues to prevail in the country where human rights abuses happen, a UN tribunal can be set up after passing a resolution either in the Human Rights Council or in the Security Council.

Nepali political leadership sometimes blame human rights organisations and the western world for taking a radical approach on transitional justice. How do you respond?

It is a baseless allegation. Not just the human rights organisations but also the international community has been saying Nepal’s judicial system should, and is capable of, handling the transitional justice process. They haven’t lobbied for trials in international courts. That, however, doesn’t mean they accept whatever process Nepal adopts. Yes, there have been objections to attempts to conclude the process by, say, providing a million rupees to the victims and shielding the perpetrators from being prosecuted. Every attempt to promote impunity will meet with objections. But that is not a radical approach.