Fool me once

  • The Conflict Victims’ Common Platform could breathe new life into our pursuit for justice
- Binod Kumar Paudel, RAJENDRA SENCHUREY
Academics engaged in post-conflict research have now shifted their focus to transformative justice, a syncretic model that comprises both retributive (penal) and restorative (reconciliatory) justice measures

Jan 3, 2019-

The release of a 23-point national charter by the Conflict Victims’ Common Platform (CVCP) on 21 November 2018 fueled national dialogue on issues of post-conflict justice. The demand to ‘establish a credible high-level mechanism with the involvement of all stakeholders’ has ignited divisions among victim groups and human rights activists. The victims who are outside CVCP have claimed that the charter is a ploy engineered by perpetrators to elude justice. 

Given these growing divisions, it is imperative that all victims unite and form a common consensus on what their next steps should be. The split within the group will surely abate their long-held struggles for justice and peace. Any delay in exerting a concerted pressure to the government before 9 February 2019 will likely lead to the unraveling of the long-criticised transitional justice (TJ) commissions (Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons) in their existing forms.

 

Half hearted attempt

Before delving into the ongoing debate, it is important to first consider the initiatives that have taken place since the signing of the Comprehensive Peace Agreement (CPA).The decade-long (1996-2006) armed conflict claimed thousands of lives and caused countless human rights abuses. These include unlawful killings, forceful disappearance, torture, inhumane treatment, arbitrary arrests, and sexual violence. We adopted TJ as a mechanism to come to terms with the legacies of our violent past.

It took us eight long years to form the existing twin commissions, though they were mandated to be constituted within six months of the signing of the CPA. Following the UN Human Rights Commission report of 2012 that detailed the human rights abuses during the war-era, Nepal realised the importance of forming the TJ bodies. 

From these, it is apparent that the Commissions were not formed with the true spirit of providing justice to the victims. As a consequence, the government did not pay much attention to involving the victims as the stakeholder during the process of drafting the Enforced Disappearance Enquiry, Truth and Reconciliation Act (2014). The Act couldn’t harbour the trust of the victims.And that ended up the Commissions yielding only the partial support from the victims, said as ‘critical engagement’. Due to their dispossessions of the 2 proposed amendments down the line, the government couldn’t work on the ideas it envisaged as the potential driver of peace and justice. Those intermittent miscarriages led the government to orphan the twin Commissions. As a result, the Commissions’ works in the span of 4 years have only limited to theregistrations of the complaints.

Without reflecting on why these commissions became ineffective, future reconciliation mechanisms will suffer the same fate. These commissions were established under the TJ principle-which many criticise is more reflective ofthe victor’s justice. These criticisms stem from penalising the perpetrators but not on repairing the harm caused to victims and society at large. It is largely driven by top-down and western liberal approaches. In the journal article ‘From Transitional to Transformative Justice: A New Agenda for Practice’, Paul Gready and Simon Robins posit, ‘In addition to the TJ agenda being externally driven in many contexts, the state-centric focus it brings to examining violent pasts discourages the engagement of affected populations.’ This was definitely the case for Nepal. 

Until the existing political structure came into being, Nepal’s TJ has controversially been used as a bargaining chip among political parties to form and dissolve governments. Parties engaged in signing pacts that focused on addressing conflict-era cases but would never implement them in meaningful ways. Similarly, the international community that has long advocated for prosecution has always ignored the need to lobby for reparations to victims. As a consequence, even after the 12 years 

of transition, many problems remain intact. Victims’ voices and concerns have seemingly been evaded from the heart of the TJ process.  

 

Transformative justice

Given the limited success of TJ practices in the world, academics engaged in post-conflict research have now shifted their focus to transformative justice, a syncretic model that comprises both retributive (penal) and restorative (reconciliatory) justice measures. Transformative justice is based on bottom-up and post-liberal approaches, such as espousing both West-led liberal peace models and supporting homegrown indigenous/local models at the same time. It gives equal weightage to both judicial and non-judicial measures and therefore focuses on reparations, reconciliation, amnesties, lustration, apologies, and structural reforms besides prosecutions. Itbelieves in the equal participation of all stakeholders in the process and therefore does not overlook any groups—not even alleged perpetrators.

The demand to involve victims in a meaningful way at every step of the reconciliation seems quite new to many of us. Until the victims, alleged perpetrators, civil society members, human right activists, policy makers, conflict experts and the international community understand the importance of undertaking both judicial and non-judicial measures,our justice-seeking mechanisms will remain flawed. 

It is too naive to assume that we can handle our TJ process by translating the practices that might have occurred in some country-specificor by calling the international intervention as few Human Right activists are advocating for. Every transition is sui generis, and, by that logic, so is any TJ mechanism. Though we need to adhere to the basic norms and principles of TJ, we have the freedom to readjust its pillars to suit our context. This kind of readjustment requires meaningful dialogue and negotiations-which the proposed high-level mechanism has the potential to foster. 

The mechanism could be instrumental not only in narrowing the rifts between victim groups but also in uniting all stakeholders under a common space with a clear objective. Still, such a mechanism cannot serve as the alternative for any commissions. It should also ensure that it doesn’t interfere with their independence. From the outside, it can serve an important role in fording consensus among differing opinions during the pursuit of complex issues. Until now, unfortunately,political leaders, victims, office-bearers in the commissions, civil society stalwarts and human rights activists, have all raised their concerns in isolated spaces and echo-chambers.

Until we earnestly accept victims as a primary stakeholder and make the necessary measures to ensure their meaningful participation in every step, the TJ process is not likely to succeed. Victims, who should be at the heart of any pursuit of justice, can no longer be paraded as a means to save face in front of the international community. Though various groups have highlighted the ineffectiveness of the commissions since their inception, no changes have been made in response. By reconstituting the commissions to reflect the transformative justice approach, we stand a better change at meeting out deadlines next month. 

 

Paudel is Research Manager for the projects of Evidence for Policy Design (EPOD) in Nepal and Senchurey is an International Peace Researcher and rights activist. 

Published: 03-01-2019 06:40

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