A transitional justice process provides credibility to the peace process. Peace does not exist in vacuum, and it does not mean only an absence of war. In order to have a lasting and genuine peace, justice and rule of law must be ensured. Transitional justice is a multi-dimensional process and it requires a range of measures to deal with past abuses. Nepal underwent a decade long armed conflict. During the conflict, massive violation of international law and international human rights law took place. The serious violations of human rights should not go unpunished. A sustainable or democratic peace is not possible without a credible process of transitional justice. Transitional justice is a judicial and non-judicial process. The judicial process alone cannot adequately address all the issues and violations.
There are four basic components of transitional justice: right to know the truth, right to justice, reparations, and long-term necessary institutional and legal reform. The right to truth is a critically important aspect of transitional process. First, the truth needs to be established and all the facts should be recorded in an objective and transparent manner. The truth process must reveal all the details about who has done what, when, how, and under what circumstances. It should also expose who gave the unlawful order, and who carried it out. In order to ensure the criminal accountability and arrange reparations, the truth has to be established. Recording truth is itself a part of a naming and shaming process, but establishing truth itself is not enough. Truth in such a process is also necessary for the right to justice for victims.
The right to justice means that the perpetrators must be held accountable for their past abuses; the perpetrator of serious crimes or who engaged in gross human rights violation must be brought to justice. Under international law, enforced disappearances, torture, war crimes, and crimes against humanity should not be subject to amnesty. Blanket amnesty for serious international crimes is not permissible under international law.
Victims also have a right to reparations. Reparations go beyond compensation; they are not blood money, rather they are part of a material and symbolic process. Under the reparations process the state has to restore the dignity of the victims. The full satisfaction of the victims and restoration of the dignity of the victims is the key notion of reparations, but not an alternative to justice.
The process of transitional justice is not only past oriented, it is also a future oriented process. In fact, a transitional justice process is the part of the nation building process. The nation building process starts, in post conflict societies, with the transitional justice process. Under the notion of transitional justice, enough safeguards have to be built so that in the future such human rights abuses or tragedies cannot happen again. Stopping the recurrence of past is also a part and parcel of the transitional justice process.
In Nepal, the process of transitional justice is not yet initiated. There is no justice in times of transition in Nepal; rather there is transitional injustice. Similarly, the process is overly delayed. The Comprehensive Peace Agreement (CPA) promised that the fate and whereabouts of the entire disappeared person would be made public within 60 days. But seven years have elapsed, and no progress has been made in this regard. In 2007 the Supreme Court ordered for immediate formation of a separate commission on disappearances in accordance with international norms and standard. But, there was total disregard for the judgment. Under the CPA and the Interim Constitution the state is under duty to constitute Truth and Reconciliation and Commission (TRC) and on Commission for Inquiry of Disappearances (COID). Nevertheless, there appears a total lack of political will to constitute commissions according to international norms and standard. This is because there is a common misunderstanding in Nepal is that justice is an antithesis to peace, and seeking justice might jeopardize the peace process. But there is no contradiction between justice and peace. Experience shows that without justice, there is no sustainable and genuine peace; peace does not flourish under impunity and lawlessness. Impunity and state lawlessness are antithetical to peace. Without establishing the supremacy of law and ensuring justice, there would be only an illusion of peace, not a genuine or democratic peace.
Recently, the legislature-passed the TRC Act and it was approved by the President. Currently, the TRC Act has become the subject of heavy political bargaining. The discourse was heavily politicized in Nepal and political parties have failed to adhere to the Supreme Court verdict. An expert panel was constituted in harmony as per the Supreme Court verdict and within short period of time conducted a wide range of consultations and reached out to various stakeholders. However, the recommendations of the expert panel were totally disregarded.
Under the current TRC Act, any crime can be the subject of Amnesty; there is no list of crimes that are not a subject to Amnesty. The victims’ associations, human rights communities, and civil society in Nepal are strongly opposing the Act. The Act passed by the parliament is a totally flawed document and it goes against the spirit of the CPA, the Interim Constitution, and Nepal’s international obligations. Nepal has ratified all the major international human rights instruments: it has duly ratified International Covenant on Civil and Political Rights (ICCPR), Convention Against Torture, Child Rights Convention, and is a party of all the four Geneva Conventions. Under Article 2(3) of the ICCPR, Nepal is obligated to ensure right to effective remedy for victims or those who suffered violations of human rights. The Human Rights Committee, a treaty body which is constituted under the ICCPR comment no. 31, stated that states must prevent not only abuses of covenant rights by agents of the state, but also violations caused by “permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities”. The Human Rights Committee also emphasized on the importance of “guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice of perpetrators of human rights violations. Failure to investigate and prosecute those responsible, whether for domestic crimes or human rights abuses, may amount to a new and separate violation of the Covenant by the state.”
Nepal has also ratified the UN Convention Against Torture. It is one of the landmark conventions; it not only criminalized torture, but also established an international jurisdiction for torture crimes. Under the Convention, torture is a serious international crime. The Convention established a clear obligation of state to criminalize, investigate, prosecute, and provide redress or reparations for torture victims or those who suffered cruel, inhuman, or degrading treatment or punishment, whether committed by state officials or private actors. The UN Committee Against Torture made a strong recommendation to the Government of Nepal to “take effective legislative, administrative and judicial measures to ensure that all allegations of arrest without warrants, extrajudicial killings, deaths in custody and disappearances are promptly investigated, prosecuted and the perpetrators punished. In connection with prima facie cases of torture, the accused should be subject to suspension or reassignment during the investigation”
The Committee Against Torture has clearly mentioned that “no exceptional circumstances whatsoever may be invoked to justify incidence of torture, rape or other ill-treatment, whether committed in the context of Nepal’s previous internal conflict or any other situation, as the prohibition of such treatment is absolute and non-derivable”. The Committee also gave clear recommendations to Nepal in 2007 that “since the failure of state to exercise due diligence to intervene to stop, sanction, and provide remedies to victims of torture facilitates and enables non-state actors to commit acts impermissible under the convention with impunity. The state’s indifferences or inaction provides a form of encouragement and or defector permission. The committee has applied this principle to state party’s failure to prevent and protect victims from gender based violence, such as rape”
Under all four Geneva conventions, parties to non-international armed conflicts obligated under customary international humanitarian law “to investigate and prosecute any serious violation of common article 3 or the laws and customs of war that are committed by any party, including by non-state actors.”
According to the UN Principles to Combat Impunity, states have a duty to undertake investigations of violations of human rights and international humanitarian law, and to take measures to ensure that those responsible for “serious crimes under international law” are prosecuted, tried, and duly punished. States have the primary responsibility to exercise jurisdiction over serious crimes under international law.
In a 2004 report to the Security Council on the rule of law and transitional justice in conflict and post-conflict societies, the Secretary-General stressed that: “United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, and crimes against humanity or gross violations of human rights.” The Secretary-General, in March 2010, issued a Guidance Note on the United Nations approach to transitional justice. The note reaffirmed that to be compliant with international law, transitional justice mechanisms must ensure that states investigate, prosecute, and punish violations of human rights and humanitarian law, as well as provide victims with reparations, including guarantees of non-repetition. To comply with those obligations, states must furthermore maintain an independent, effective and impartial judiciary that prosecutes in a timely manner and in accordance with international standards.
UN also adopted Basic Principles and Guidelines on the Right to a Remedy and Reparations. The Basic Principles emphasize that states’ obligations under international human rights and humanitarian law to investigate, prosecute and punish violations must also be reflected in domestic law to ensure that victims have access to justice and remedies, including reparations.
The holistic approach of transitional justice needs to be adopted in Nepal immediately. The process must be victim centric and accountable to the victims. The current piece of legislation creating the transitional justice mechanism passed by Nepalese parliament does not meet these international standards and norms. Amnesty for serious international crimes is not acceptable under any circumstances. The blanket Amnesty goes against right to justice for victims and it also violates the basic norms and standards of international law and will not allow peace to gain a foothold. It also undermines the Supreme Court verdict and rights of the victims to have a dignity and effective remedy under rule of law in a peaceful Nepal.
About the author: Dinesh Tripathi is an Advocate at the Supreme Court of Nepal.
