17-23 October 2014 #728

Where is the justice?

There is little sign that Nepal’s leaders are prepared to address atrocities during a war that ended eight years ago
David Seddon
Some 30 countries, from Algeria to Uganda, have established commissions of enquiry into alleged atrocities perpetrated during periods of internal conflict or authoritarian rule, or in a few cases (e.g. Canada), into specific alleged abuses of human rights.

Truth-seeking is intended to enable those concerned to investigate and for societies divided by violence to come to grips with ‘what really happened’ -- particularly with respect to alleged atrocities and/or war crimes committed or perpetrated by individuals, groups or governments. In some versions of the TRC, it is considered sufficient merely to uncover the truth of what happened to enable the victims and the relatives of victims to reconcile themselves to that truth. In what is often taken as the ‘model’, the South African TRC – instigated significantly by the deeply devout Bishop Tutu - required those responsible to confess and admit their wrongdoing, often in front of their victims and/or relatives of the victims.

The powerful emotions aroused by this process of ‘confrontation’ (of a self-confessed perpetrator with both the ‘truth’ and the victim of the atrocity committed) would, it was hoped, result in a‘catharsis’ -- a cleansing or purification – both for those responsible and also for those suffering from the abuses or atrocities involved, leading to remorse and regret on the one hand, and forgiveness and reconciliation on the other. Desmond Tutu has written in his The Book of Forgiving that ‘with each act of forgiveness, whether small or great, we move towards wholeness’.

For many, however, this fails to address the issue of responsibility for abuses and the related issues of justice and punishment, and therefore fails generally to generate reconciliation. If justice is not done and seen to be done, the discovery and presentation of ‘the truth’ alone  (even when confessions are made) may result not so much in ‘catharsis’ as in heightened anger and, potentially, in even greater inter-personal, inter-group and wider social division.

Those who call for ‘transitional justice’ argue that the truth alone, with or without personal confession, will not produce a lasting reconciliation or ability to accept, and move on from, that truth. Forgiveness will not be possible for many victims or relatives of victims and should not be expected, let alone demanded of them, they argue.

In Nepal, the 2006 Comprehensive Peace Agreement (CPA) at the end of the decade long civil war provided for a TRC. Its establishment was, however, delayed for many years by political power struggles and by the reluctance of military and political leaders to open their war-time actions to scrutiny. Eventually, in March 2013, controversial TRC legislation was passed which merged the TRC and Disappearance Commissions and, despite the CPA and international legal obligations, gave wide scope for arbitrary decisions on amnesty, even for serious crimes. In January 2014, the Supreme Court overturned this legislation.

Some eight years after the end of the civil war this represented some hope of an end to impunity for atrocities and war crimes committed during the conflict. In effect, it limited amnesty provisions, separated the TRC and Disappearance commission to ensure their effective implementation, made suspected human rights violators ineligible for commission appointment, and reduced the politically-appointed Attorney General’s discretionary power to decide on prosecution. These were important decisions for transitional justice and independent investigation, and their passing early in the new Constituent Assembly’s tenure brought the issue into fresh focus.

However, criticism at the 110th session of the UN Human Rights Committee in March, nearly three months later, illustrated dissatisfaction with continuing slow progress in the reforms, while demonstrations and hunger strikes (which have now resulted in at least one death) reflect the deep frustration of victims and relatives of victims with this stalling. Civil society, legal professionals, and victims’ groups have continued to make public demands for truth and justice, and maintained pressure with protests and efforts to record testimonies of abuses.

New legislation to establish a TRC and Commission for Inquiry of Disappearances was voted through the Constituent Assembly on 25 April 2014, although it was opposed by some smaller parties. Nepalese and international rights groups widely criticized the new law for having effectively re-worked the version already rejected by Nepal’s Supreme Court, and demanded that it be significantly amended and made more ‘victim-friendly’.

Some proposed changes were included, but these were regarded by critics as insufficient and as largely disregarding the recommendations of the government’s own taskforce. The new bill separated the TRC and Disappearance commission, but still failed effectively to address vague wording allowing considerable discretion on amnesties even for serious crimes.

Meanwhile, despite some judicial counter-efforts, successive post-war governments have ‘withdrawn’ hundreds of cases, including many murder charges, often on the basis that security personnel were ‘acting in good faith’, especially with politically-affiliated individuals.

Furthermore, the military has continued to shield and even promote personnel accused of crimes, while reportedly punishing would-be ‘whistle-blowers’. The case of Colonel Kumar Lama, taken up by the British Crown Prosecution Service in January 2013 after he was accused of responsibility for torture and war crimes has already been subject to several interventions by the government of Nepal in his defence, and his trial is now postponed until 2015.

In an article in Open Democracy on-line (16 June 2014), Liam Anderson argued that ‘Nepali citizens have long been denied justice, but continued civil society pressure on the new, long-delayed Constituent Assembly will hopefully improve parliamentary efforts to give the dragging peace process and long-awaited Truth and Reconciliation Commission some resolution’.

Four months later, there is little sign that the government, let alone the leaders of the major political parties and the military, are prepared to recognise the need for a process that does more than try to whitewash Nepal’s recent history and brush under the carpet the atrocities and human rights abuses that undoubtedly took place. But the demand for a real initiative to set Nepal’s house in order in this matter seems likely to increase.

@pigreen

This is the first of David Seddon’s The Gadfly columns in Nepali Times.

Read also:

Irreconcilable truths, Editorial

Healing the wounds of war, Rubeena Mahato

Commissions of convenience, Trishna Rana

The sad saga of the Adhikari family, Damakant Jayshi

Just want justice, Bhrikuti Rai

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