However, in the eyes of those working on the issue of enforced disappearance, the Act served mostly to whitewash a problem that the government has long vowed to deal with in a separate, just, and transparent manner. Indeed, in the past year, there have been various efforts to establish an independent commission for the investigation of enforced disappearance and subsequent attempts by politicians to stall its formation.

The Government of Nepal has long favoured a version of the Act that would allow for the provision of amnesty for perpetrators of enforced disappearance, as they do for a range of other violations. This perspective is the product of a political system dominated by factions that fought in the war. As both State and Maoist forces perpetrated disappearances during the conflict, forming a commission that would not only investigate disappearance, but also prosecute and punish perpetrators would likely result in both sides seeing their political cadres and potentially their leaders jailed. While a range of governments led by the major political parties have pushed long and hard for the amnesty provision, the Supreme Court of Nepal overruled that portion of the bill on January 2 and further stated that two separate, independent bodies be formed, a TRC and a Commission to Investigate Enforced Disappearance.

Open questions

To date, neither a TRC nor a Disappearance Commission has been formed. Significant questions remain concerning the forms the commissions will take and the powers they will be granted. Transparent implementation and involvement of concerned constituencies are also matters of concern.

Nepal has never passed any legislation criminalising the practice of enforced disappearance nor has it ratified the International Convention for the Protection of All Persons from Enforced Disappearance. As defined in the Convention, enforced disappearance is: “…the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

Barring the classification of enforced disappearance in Nepal as a ‘continuing violation’, prosecution of old cases under a newly established law would be impossible. Though not ideal, perpetrators could be found guilty under existing laws, such as those concerning murder or kidnapping. However, given the continued reluctance of the state to bring perpetrators of all manner of serious conflict-era violations to justice, prosecutions seem unlikely. If proper consideration is not given to the form and mandate of the Disappearance Commission, it runs the risk of being nothing more than a symbolic body, instrumentalised to placate the public and international actors that have demanded justice both during and since the conflict.

Governmental reluctance to bring justice to bear on such cases has been further manifest in the recent handling of the Dhanusha disappearances case where State forces killed and disappeared five student activists in 2003. The National Human Rights Commission (NHRC) has investigated, exhumed, and returned the identified remains of those disappeared to their families. However, the government is not actively pursuing an investigation nor is it showing any intent to punish the perpetrators. The Dhanusha case has socially established the truth surrounding these disappearances but has raised big questions about a commission and a criminal justice system where there has been no criminal investigation as per the recommendations of the NHRC.

Lessons from Argentina

Lessons for the soon-to-be-formed Commission on Enforced Disappearance can be taken from the National Commission on the Disappearance of Persons (Conadep) formed in 1983 to investigate disappearances that took place during the ‘Dirty War’ in Argentina between 1976 and 1983. Conadep had neither judicial power nor any capacity to summon people to court or force them to testify. But Conadep was fortunate enough to have complete access to state and military records, along with the general cooperation of security forces during the investigation period. The commission’s mandate, however, was limited to the development of a report to be presented to the government after a period of nine months. This suggests that the absence of any formal law or international treaty criminalising enforced disappearances might not render the commission in Nepal impotent. However, questions remain as to how transparent the government will be and to what extent the commission’s inquiries will be aided or obstructed by the State and concerned parties.

Many years after Conadep submitted its report to the government, junta officials were put on trial and brought to justice. However, political wrangling over amnesty continued for years, including reimposition of amnesty laws that lasted until 2003. Trials concerning the Dirty War period recommenced and continue today in Argentina. Ultimately, the government overturned

formal immunity laws passed at the end of the conflict and the de facto amnesty that had been afforded to junta officials. These actions suggest that progress can

be achieved—given adequate political

conditions.

Continuing campaign

When considering the implementation of an Enforced Disappearance Commission in Nepal, these lessons should be kept in mind. It is clear that the current political dynamics will not permit prosecutions on any scale—if at all—of those responsible for conflict violations. Whilst the campaign for justice—in all its forms, including prosecution—must continue for the families of the disappeared, a commission must be created that can deliver truth, even if punishing perpetrators is not possible at this time.

In any event, the current political environment will create challenges for a commission in terms of transparency and ensuring an environment in which the commission can act independently to fulfil its mandate. In the short term, giving the commission no judicial power may cause frustration. However, it would ultimately leave the door open to future prosecutions when a more justice-friendly political environment arises. Either way, serious consideration should be given to the commission’s mandate and expected outcomes to ensure a body that can work properly and facilitate the ongoing justice process. Perpetrators must learn from ongoing prosecutions in Argentina, that although it is impossible today, victims’ families will not rest until justice has been served.

Bhandari is Coordinator of the National Victims Alliance and Wilson is a development professional working on transitional justice issues in Nepal