Reparative justice

  • It would be wiser to formulate a freestanding policy on reparations than wait for the TRC
Reparative justice

Jun 24, 2014-

Despite the landmark Supreme Court verdict of January 2 that struck down provisions for blanket amnesty, the transitional justice bill of April 9 deviated remarkably from the Court’s decrees. So it would be right to be skeptical that the to-be-formed Truth and Reconcliation Commission (TRC) will deliver comprehensive reparations to victims and their families. In a country full of cynicism, the TRC doesn’t seem like it can be trusted to guarantee victims’ right to remedy, although it might reconcile war-era enemies.

Still waiting

Victims have long been seeking transitional justice, which comprises of truth seeking, prosecution, reparation and reconciliation. All these are equally important mechanisms, which the victims would definitely desire sooner or later. Nevertheless, reparation is the most urgent aspect as it incorporates provisions of basic needs, medical treatment, return of land, public apology and construction of memorials. With everyone keeping watch over amnesty and prosecution, there is a fear that reparations will be forgotten.

In the seven years since the signing of the Comprehensive Peace Agreement, past atrocities and human rights abuses have not been properly dealt with, leaving people to suffer from psychological trauma and physical suffering. Unable to stand the suffering and in the face state indifference, some have even ended up taking their own lives. Despite this, the state has not formulated appropriate plans and policies that could heal the pain and suffering of victims overwhelmed by despair.

Multiple policies from 2006 till date have not been effective in providing redress for victims. Confl-ict victims have only received economic assistance as relief or compensation. But such assistance is not something to provide in isolation. Ad-hoc compensation programmes are not long-term solutions. People who once received economic assistance may revolt again because of dissatisfaction. It is always best to complement economic assistance with other comprehensive programmes.

Providing reparations

Under several human rights laws, the state has an obligation to provide effective, prompt and adequate reparations to victims of conflict. At the same time, it is also the right of victims of gross human rights abuses and violation of international humanitarian law to ask for reparations. Such reparations can be material or symbolic; collective or individual; and in the form of monetary payments or services. Symbolic reparation can come in the form of plays, rituals, aesthetic productions, social or intellectual constructions and explorations and are to be identified with regenerative processes. Similarly, when whole villages or communities are victims, they should be liable for collective reparations. The UN Basic Principles and Guidelines indicate that reparations should consist of multiple components, identify a range of forms of reparations including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

In a letter to the UN High Commissioner for Human Rights on April 25, 2013, Advocacy Forum-Nepal and the Association for the Prevention of Torture revealed that relying on small monetary compensation as ‘interim relief’ is wholly inadequate to address the sufferings of conflict victims. Similarly, the ‘Discrimination and Irregularities: The Painful Tale of Interim Relief in Nepal’ by Advocacy Forum in 2010, ‘Disappearances in Nepal’ by the International Centre for Transitional Justice in 2008 and the ‘Nepal Conflict Report’ by OHCHR in 2012 have all recommended comprehensive reparations.

An ICTJ survey on conflict victims in 2008 found that a higher percentage of victims sought early reparations than prosecution of perpetrators. Instead of this desired scenario, the government is planning to stem reparations from the TRC, which had been highly contested for long before its inception. As long as this situation persists, victims’ conditions will only exacerbate.

In retrospect, the ordinance on Disappeared Persons and Truth and Reconciliation, which received a stay order from the Supreme Court, was also lauded for provisions to deliver efficient reparations. However, the ordinance did not take a holistic approach to deal with conflict victims and was not likely to foster lasting peace. It looked at victims of different types with a single lens. But to assume that the to-be-formed TRC will issue adequate reparations would be fanciful.

International examples

For instance, unanimously passed reparations in Northern Uganda deviated much in practice when it came together with the TRC. The Peace, Recovery and Development Plan for Northern Uganda was told to have included reparations, but victims, civil society and other stakeholders beside the government did not find these any different from the plans of development initiatives.

In South Africa, the symbolic dimension of reparation was highly emphasised by the TRC. Hence, it has enormous potential to be a model for Nepal. If our commission can duly imitate the South African example, perhaps we can expect justice for victims.

Looking at other the international experiences, TRCs in Argentina and El Salvador did not have mandates to provide reparations. The TRCs of South Africa, Guatemala, Haiti and at least until 2006, Peru, had this mandate but they were only implemented partially; whereas, Argentina, Brazil, Malawi, Morocco and Germany implemented reparations that did not stem directly from the TRC. Thus, depending upon the need, countries should decide on reparation measures that best suit them.

In the end, it is very predictable that the TRC bill is once again going to be challenged in a court of law. Therefore, it is quite improbable that a TRC will be formed anytime soon in Nepal. Rather, its prolonged delay is going to aggravate the condition of victims. So, it would be wiser to not wait for the TRC to provide reparations but address this issue immediately through a freestanding policy.

Senchurey is a policy fellow at the Alliance for Social Dialogue

Published: 25-06-2014 08:36

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