Ensuring Justice To Conflict Victims

The death of a loved one in armed conflict is both painful and tragic. However, the disappearance of loved ones is even more agonising, as family members endure the torment of ambiguous loss. While it is possible to come to terms with the death of a loved one, the uncertainty surrounding the disappearance of a family member makes closure elusive. There is always a faint hope that the missing person might return. Disappearances are a devastating humanitarian consequence of armed conflict, often resulting from a disregard for international humanitarian law (IHL) and international human rights law (IHRL) by parties to the conflict. Enforced disappearance is a global phenomenon, frequently used by oppressive regimes as a tool to suppress political opponents and spread terror within society, particularly during states of emergency.

The International Day of the Disappeared, observed globally on August 30, serves as a crucial reminder to educate the public on this pressing issue, mobilise political will and resources to address it, and reinforce the achievements of humanity in the fight against enforced disappearances. International human rights instruments, including the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), refer to "enforced disappearance," while international humanitarian law instruments, such as the 1949 Geneva Conventions and their additional protocols, use the term "missing." The term "missing" is broader, encompassing cases of disappearance that are not necessarily enforced. 

International treaty

The ICPPED, which came into force in 2010, is the first international treaty specifically addressing the issue of disappearance. Nepal, with its history of recent armed conflict, has yet to become a party to this convention. To date, 98 states have signed the treaty, and 75 have ratified it. Acceding to the ICPPED would not only enhance Nepal’s humanitarian image on the international stage but also fulfill its moral obligation, especially as a current member of the United Nations Human Rights Council. Sadly, it took a significant amount of time to establish the transitional justice (TJ) bodies envisioned in the Comprehensive Peace Agreement (CPA) of 2006 and the Interim Constitution of Nepal 2007. The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act was only enacted in 2014. 

Pursuant to the Act, the government formed two TJ commissions in February 2015: the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC). Despite their formation, the CIEDP and TRC have struggled to carry out their mandates due to various challenges. First, the government failed to amend the 2014 TJ Act as directed by the Supreme Court. Second, the international community, including the United Nations, declined to support the commissions, arguing that they did not meet international legal and transitional justice norms. Third, victims and their associations refused to cooperate with the TJ commissions. 

The existing TJ law fell short of fully integrating the fundamental elements of transitional justice: truth, justice, reparation, and guarantees of non-recurrence. Nonetheless, many families of the disappeared opted to engage critically with the CIEDP, despite its inherent limitations. The CIEDP is mandated to investigate cases of enforced disappearance during the armed conflict, bring the facts to light, provide compensation and relief to victims, and recommend legal actions against perpetrators. Both TJ commissions were restructured once, yet neither has been able to fulfill its responsibilities. It is regrettable that both commissions have remained vacant since July 2022. 

While the CIEDP has completed preliminary investigations of individual cases and developed rules, policies, and guidelines, it is hamstrung by the absence of commission members, which prevents it from making policy decisions. The CIEDP has identified over 2,500 cases of enforced disappearance, while the International Committee of the Red Cross (ICRC) records over 1,300 missing persons. It is imperative to clarify the fate and whereabouts of the disappeared and address the many needs of their families. 

Prolonged delay

After a prolonged delay, the House of Representatives passed the bill to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission (Third Amendment) Act on August 14, 2024. This significant parliamentary approval occurred after key political parties reached a consensus on the contentious issues within the bill. The TJ bill is expected to soon become law. The amended Act is anticipated to empower the TJ commissions to fulfill their mandates, ultimately addressing the needs of conflict victims. 

The government has reaffirmed its commitment to concluding the transitional justice process by addressing victims' concerns, complying with the Supreme Court's directives, and adhering to the spirit of the CPA and relevant international commitments. To ensure the success of the transitional justice process, the TJ commissions, relevant government bodies, and conflict victims must work collaboratively. Additionally, the international community is expected to offer their expertise and resources in a supportive manner, without undue interference.

(Chalisey served as Head of Communications and IHL in the International Committee of the Red Cross (ICRC), Kathmandu, from 2001 to 2022.)