Deliver Transitional Justice Fairly

Transitional justice has been the talk of the town among the victims and survivors of the Maoist insurgency, their families and other stakeholders in Nepal since the Transitional Justice Bill – the Investigation, Truth and Reconciliation Commission (Third) Amendment Bill, 2024 – was authenticated by the President. There has been an inordinate delay in executing transitional justice. It was mentioned in the Comprehensive Peace Accord inked between the then government and the Maoists in 2006. As the bill has been endorsed, it is yet to be seen when the victims, survivors or their families will get justice. 

Transitional justice is executed after political transition in a country. The transition may be from an autocratic regime to a democratic regime, from war or civil war to a stable regime or from violence to peace. It may get implemented soon or after a long delay. Or, it may not get implemented at all. 

Basic thrust

The basic thrust of transitional justice is to deliver justice to the victims, survivors or their families from human rights violations – murders, forced disappearances, crimes against humanity and the like. Transitional justice is a tool for coping with human rights abuses and trauma arising therefrom. It gives an opportunity to the victims, survivors or their families of human rights abuses to live alongside the perpetrators. This will boost the trust of the public in the government and will strengthen a democratic culture. 

Transitional justice is a comprehensive concept that encompasses a number of things such as settling old scores with the perpetrators of human rights abuses without disrupting democratic ideals, developing judicial or non-judicial (third-party) mechanisms aimed at resolving conflicts, providing reparations for the victims, survivors or their families and creating social harmony by bringing the victims, survivors or their families into terms with the perpetrators. Transitional justice has several objectives. It aims at ending the state of impunity and establishing the rule of law. By ensuring legal and human rights, it enables the victims, survivors or their families to live a trauma-free life. It plays a crucial role in halting human rights abuses in the future. It also helps to identify the perpetrators and sanctions may be imposed against them. 

Transitional justice brings about social harmony and trust. It consolidates democratic institutions, improves the law and order situation and brings about reforms in the security sector. It recognises the victims or survivors as equal citizens of the state. What is significant is that it legitimises the current state and de-recognises the past state. This is possible when the public has trust in the current state. This will, in turn, lead to a stable, just, equitable, peaceful and democratic society. 

However, implementing transitional justice is not as easy as shelling peas. It has to be part of a holistic approach. Human rights abuses need to be thoroughly scrutinised and prosecutions need to be carried on against the perpetrators for human rights violations in a just and fair way. Transitional justice should be executed in a non-partisan and impartial manner. Gender justice needs to be established so that girls and women have equal access to the transitional justice mechanism. Transitional justice becomes effective when it is executed in accordance with international human rights law, international criminal law and international humanitarian law. The victim- or survivor-friendly decisions made by the legal apparatus of a particular country may also be followed to make transitional justice effective. 

The concept of transitional justice emerged in Europe after World War II with the establishment of the International Military Tribunal at Nuremberg, Germany. Trials of Japanese and German soldiers were held at the Tribunal for their war crimes. Later, former members of the military juntas were tried in Greece in 1975 and the Argentine juntas underwent trials in 1983. 

It may be mentioned that Canada, Australia and New Zealand have adopted transitional justice mechanisms to address matters relating to indigenous oppression. Likewise, issues relating to racial justice have been discussed in the USA by adopting transitional justice approaches. Truth and reconciliation commissions have also been proposed to resolve conflicts in the Middle East. However, the region has remained volatile for years and it is well-nigh impossible to secure peace in the region. As such, international-level negotiations between the parties concerned need to be started in the presence of international mediators. 

Later, truth commissions emerged in various countries: in Argentina in 1983, in Chile in 1990 and in South Africa in 1995. Such commissions have appeared in Latin America, Africa, Asia and Eastern Europe. However, in the former Yugoslavia the truth commission did not succeed in fulfilling its mission owing to political impediments. 

Hopes

The endorsement of the TRC bill has raised hopes among the victims, survivors or their families that they will get justice. However, the bill stipulates that the perpetrators will get only 25 per cent of the sentence as provided for in the current law. This provision may not commend itself to the victims, survivors or their families. However, it is better than the provision of blanket amnesties. The government tried to include this provision in the TRC bill in the past but it was forced to withdraw the provision amid both internal and external pressure. 

As it has been eighteen years since the Comprehensive Peace Accord was executed, it is high time transitional justice were delivered to the victims, survivors or their families. Just endorsing the bill is not so important as working towards implementing transitional justice. Complaints against human rights abuses and enforced disappearances have already been received and some work has also been started on them. So non-partisan and victim-sensitive officials should be appointed to the TRC commissions and the commissions should accomplish the assigned tasks expeditiously. This will bring the remaining peace process to a logical end. 

(Maharjan has been regularly writing on contemporary issues for this daily since 2000.)