INTERVIEW

Transitional justice cases will not be swept under the rug

  • Interview HARI PHUYAL
Kathmandu

Dec 4, 2017-The decade-long civil conflict resulted in a huge number of human rights abuses, forced disappearances, and civilian deaths. It has been 11 years since the signing of the Comprehensive Peace Accords (CPA), which marked the end of the conflict and allowed for the formation of the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) to act as transitional justice bodies.

Both these commissions, formed nearly three years ago, have crossed their mandated tenures and even received one-year extensions—and yet victims of the conflict have not been given the justice that they deserve. Binod Ghimire talked to former Attorney General and expert on transitional justice, Hari Phuyal, and discussed outstanding issues related to these two commissions and the larger peace process.

It has been 11 years since the signing of the Comprehensive Peace Accords (CPA). It has also been almost three years since the setting up of the transitional justice system (which will complete its tenure within the next three months). Given all of this, where do we stand?

The tenure of the TRC and CIEDP ends on February 9, 2018. Observing the pace of their work, and the work completed till now, I do not see these commissions completing their work before their term expires. The government was unable to revise/amend the mandate of these commissions in line with Supreme Court orders. We are at a point where, of the around 60,000 complaints filed under these commissions, they have only opened investigations on around 7,000 cases. I think that the best thing to do now would be to follow the recommendations of the Supreme Court in amending the mandate of these two commissions before February 9, and letting them continue their work for a while longer. If this does not happen, we will be stuck in the position we were in before the formation of these commissions. The human rights commission might push to reopen individual cases for the 3,000 disappeared person complaints currently lodged at CIEDP. 

Are the major political parties or the transitional justice bodies themselves to be blamed for this uncertainty we are in?

Rather than putting the blame on one group or another, let’s analyse how the bodies were formed. The persons who espoused for the formation of such bodies frankly did not know what they were promoting. Some lobbying groups look at these bodies as prosecuting commissions, while others think they are reconciliatory bodies. The commissions also started getting manipulated to suit political needs. When certain parties were friendly towards each other, they would claim that the commissions should move forward to reconciliation. When they would be political rivals, political parties would decry for investigations to occur. We should forget what has happened, and focus instead on what should happen going forward. And that is to take the 

commissions’ work as necessary steps to complete the peace process. 

The parties’ leadership themselves, fearing that the work of the commissions would be their downfall, may have hampered the TRC and CIEDP. Do you think this is true?

There is a lack of understanding in that statement. Look at the level of investigations. There are no cases being investigated by the transitional justice bodies that will shake up and bring down the top political leadership. There have been massive incidents during the civil conflict, one of them being the Bhairavnath battalion incident. There are some individual cases too, like the Maina Sunuwar case and journalist Gyanendra Khadka’s death. The media has invested in bringing these cases to light, so these simply won’t go away. In my opinion, I feel like the concerned will look at transitional justice as the last part of the peace process, and will resolve it in some manner. I think that a win-win solution will come out where every vested group is satisfied. I don’t think any solution will come without consulting all groups involved, however. The Maoists and the security forces are both stakeholders in the peace process. There are international conventions that govern such peace processes, and the concerned have to adhere to international provisions and practices in resolving transitional justice issues. Nepali citizens involved in the conflict have to be wary of being prosecuted when travelling abroad, and down the line these same people are open to being prosecuted at home too. So, I don’t think anyone wants to obstruct resolution from happening as soon as possible. 

How do you view civil society’s role in all of this? Civil society has been divided on whether the process should be reconciliatory or not.

I don’t see a huge discrepancy in thoughts between different groups in civil society. I have not heard of a single group vouching for blanket amnesty against those who stand accused. There are groups that are saying that the justice process should be unbiased—that is all. I have also heard rumours that some people are pushing for these cases to go The Hague (International Court of Justice and International Criminal Court). This is simply not necessary. If we can build a trustworthy and transparent system here, we can solve these issues without seeking outside help. The investigations have already begun. However, investigations and charges are not enough. The victims are also stakeholders, and should feel that they too have ownership over the transitional justice process. It’s a national healing process. 

The TRC has set up seven satellite offices and has begun preliminary investigations. The question is whether these investigations have adhered to set standards. What is the actual situation in your opinion?

Right now, the processes that the TRC and CIEDP have employed needs to be changed. Moreover, it should be done in a victim-supporting and transparent manner. The most important thing is the process itself, and we need to analyse whether all stakeholders, including the media, were consulted in forming the process. We know that the victims and international watchdogs are not happy with the process. Therefore, the only way forward is to change the process. 

 

A draft amendment keeping in step with the recommendations of the SC was sent to the Law Ministry for review and has been sent back to Peace Ministry. To pass these amendments, you have to admit that the only thing required is political commitment.

Yes, political commitment is required at this point to solve some key issues. Most of the groundwork has been laid out in the amendments. However, for example, let’s look at Columbia’s peace process. They decided to use reduced sentences for crimes committed during the civil conflict with FARC rebels. Perhaps we can use reduced sentences here too. We can’t forgive crimes, but for the accused who are actively participating in the peace process—we have to incentivise and reward such behaviours. Reduced sentences are a good way to do just that. 

As things stand, by February 9, we see a few scenarios panning out. One is to let the tenure of the two commissions expire. The other is to work to extend the tenure of these bodies with the same mandate as they are working in currently. The last one is to extend the commissions’ tenure with amendments setting a new standard. Which way do you think the process will go?

What I think is that, after Parliament comes into session, before February 9, the tenure of these two commissions will be extended, keeping it in line with the decisions and recommendations of the SC. I think that there will be a political understanding between all parties to do the necessary and let these commissions function effectively going forward. I also think that the Nepal’s peace process will complete itself within the next year and a half. If this does not happen, if the tenure does not extend, the commissions will have to submit a report to Parliament. Parliament will have to send this report to the National Human Rights Commission. The NHRC, along with protesting victims, will definitely push forth with the demand to set up new commissions to deal with the peace process. So, no matter what, transitional justice cases will not be swept under the rug—60,000 cases will not disappear. We will just be set back three years if there is no amicable solution. 

Will either of the current electoral alliances forming government change anything?

I was Attorney General when the UML and Maoists were in a ruling coalition. I had deep conversations with the leaders of the same then. I also discussed the issues with heads of the security agencies, not to mention representatives of the international community. The common understanding I have witnessed between all these groups is that everyone agrees that these issues have to be resolved. But how it will be resolved is the big question. The biggest fear on both sides of the fence is whether judgement will be lopsided—whether the justice system will favour one side over the other. However, even if the Nepali Congress-led coalition forms government, the NC is still an internationally recognised political party that believes in the rule of law and democracy. So they will also take this to a logical and fair conclusion, I am sure of it. What is important is that the emblematic cases, ones that the international community also wants resolved, should be handled properly. Everyone is equal in front of the law, no one can attempt to excessively hunt or pardon the accused. This is neither a Maoist issue, nor is it a security agency issue. It is a national issue.

Published: 04-12-2017 08:45

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