Justice For Conflict Victims On Horizon?

Nepal’s protracted transitional justice (TJ) process is apparently heading to a logical conclusion after a three-party taskforce Thursday sorted out  the key contested issues pertaining to it. The panel involving the representatives of ruling Nepali Congress and CPN-UML, and opposition CPN-Maoist Centre, have thrashed four thorny subjects - defining the grave human rights violations that took place during the Maoist insurgency (1996–2006), providing justice and compensation to the conflict victims, finding a way out if the victims refuse to pardon the perpetrators, reducing the duration of punishment to the guilty and giving compensation to the discharged Maoist combatants.

It took almost 18 years for the major parties to solve the disputes that delayed transitional justice and reconciliation. The agreement, dubbed as a breakthrough, requires the approval of the heads of three major parties. Only then, it will pave the way for amending a Bill on Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act (2014), widely referred to as the transitional justice bill. The Bill will be forwarded to the federal parliament for endorsement after a parliamentary committee gives it the go-ahead. 

Given the leniency towards the perpetrators, the deal might raise hackles among the conflict victims and rights activists. The challenges also lie in complying with the domestic laws and international legal obligations. As per the accord, intentional or arbitrary killings that took place during the armed conflict have been defined as murders and the grave human rights violations. More than 17,000 persons that include Maoist militias, security personnel and general people lost their lives during the bellicose movement that aimed to install the republican system replacing the constitutional monarchy.

Victims’ consent

One important point of the deal is that the victims' consent shall be mandatory for reconciliation and pardon. If the victims are not ready to give amnesty to the perpetrators, the former will move the court to punish the offenders. But there are two ways in bringing the culprits to book. First, the victims will have to ask the Office of the Attorney General to prosecute the perpetrators on their behalf. This will be sarkarbadi mudda (litigation proceeded by the state). Second, the victims will take the criminal case on their own, which has been described as duniyabadi phaujadari mudda (criminal case initiated by an individual).

The criminal cases, registered by the individuals, are taken as serious violation of human rights that include murder, rapes and sexual violence. Similarly, the security personnel killed or injured during the conflict will also be identified as conflict victims and their relatives will get reparation. The disqualified Maoist combatants, including the child soldiers, will also be compensated by the state, according the accord. Another significant point is that sentence to the perpetrators have been reduced by 75 per cent. Those involved in brutally or arbitrarily killing of humans will face 25 per cent of prison term based on the prevalent law. As per the deal, a period of three months has been allotted to lodge the cases related to rapes and sexual violence.

More than 3,223 complaints of enforced disappearances have been registered at the Commission of Investigation on Enforced Disappeared Persons and 63,718 at Truth and Reconciliation Commission. The Disappearances Commission has already investigated into 2,494 cases. With the objective of resolving the conflict era cases and ensuring justice to the victims, Nepal government constituted these two commissions in 2015 in line with the Comprehensive Peace Agreement inked in 2006. But these commissions have been idle in the absence of their heads and office-bearers. Once the House approves the amended Bill, the process for their appointment will commence.

The ruling and opposition leaders are optimistic about concluding the TJ process, which they claim will be recognised as a successful model of conflict resolution in the world. Nonetheless, questions have been raised pertaining to drastically reducing the sentence terms of offenders and the litigation process at the proposed Special Court against them. Reduced imprisonment amounts to a symbolic action against the wrongdoers, which may not deliver eventual justice to the victims. They have questioned the criteria on the basis of which sentence terms have been slashed. The members of the panel insist that conflict era events happened in special circumstances so it is not appropriate to deal with them through the regular criminal justice system. 

Positive feature 

Making victims’ approval mandatory for granting the amnesty to the perpetrators is a positive aspect of the agreement but the proposed Bill has given upper hand to the Office of Attorney General to proceed the cases in the court. If the government prosecutor considers the case lacking adequate legal ground, s/he may not take it to the court. As the ruling party appoints the Attorney General, the partisan bias may stifle the victims’ plea for justice. However, the proposed Bill has also given rights to victims to sue the perpetrators at the regular courts if they are unwilling to reconcile with the latter. Prior to reaching the agreement, the Maoist Centre had insisted that the Truth and Reconciliation Commission should be given the right for reconciliation between the victims and the perpetrators but the UML was for victims’ compulsory consent for the reconciliation. The panel members have claimed that they have explored a middle ground to address the concerns of all sides involved in the conflict.

Interestingly, the three parties have succeeded to forge consensus on the much-talked about TJ process with the formation of NC-UML coalition government. The issue continues to linger even as the Maoist Centre led the government several times. The TJ process became the victim of power politics time and again. Even now, the much-hyped agreement is likely to draw flak from the rights groups for drastically cutting the sentence terms of the guilty. Now the political leadership and judiciary should demonstrate their ability to conclude the tricky TJ process in a way that the victims feel they finally get justice and duly compensated.

(The author is Deputy Executive Editor of this daily.)