Throughout the world in post-conflict societies, transitional justice (TJ) process is primarily known as the process of addressing serious crimes and grave human rights violations occurred during the conflict or controlled regime. It normally encompasses confession of past weaknesses or mistakes, prosecution of perpetrators through due process, appropriate and acceptable reparation to the victims and recommend amnesty for to those necessary as per the established procedure with the consent of victim by respecting the dignity of victims and loss of their family.
The jurisdiction of TJ mechanisms should be incorporated as part of promoting reconciliation, reparation, and justice that aims to build a just society and sustainable peace. If the issues of serious crimes and grave human rights violations are not addressed properly and timely, there is a potential risk of escalation of conflict and increasing instability in the society.
In Nepal, theTJ mechanisms are envisioned through the November 2006 Comprehensive Peace Agreement (CPA)for the purpose of seeking truth and documenting the violations human rights and humanitarian laws, and serious crimes, and making recommendation to competent agencies or government for criminal prosecution against the alleged perpetrators; reparation to the victim with the assurance of justice; and provide suggestions for institutional reform from the principle of non-repetition. Such mechanisms are essential to handle the mass number of cases within limited time while the state’s legal and justice mechanisms are overwhelmed with regular business or the process in these mechanisms are overstretched and at times, the existing judicial mechanisms are unable to deliver prompt and impartial justice.
During the period of conflict, almost 15,000 people have lost their lives and more than 1,200 are documented as missing persons in accordance with the National Human Rights Commission and credible human rights institutions such as Informal Sector Service Center (INSEC).
Despite the formation of the Truth and Reconciliation Commission (TRC) and Commission for Investigation of the Enforced Disappeared Persons (CIEDP) in February 2014, the victims of conflict and its major stakeholders don't seem enthusiastic suspecting that there is no political will to address victim's trauma, pain, and loss.
Similarly, the human rights communities, victims of conflict and international communities suspect that the TJ mechanisms could be inclined towards granting amnesty to political leaders without justification. Unfortunately, both commissions have not demonstrated its independence and effectiveness, and seen incompetent to establish its legitimacy and credibility, and failed to garner support from its stakeholders, including civil society and the international community.
As time goes, Nepal's TJ process has become a complicated task, while the government and political entities don't reveal their willingness to properly address the trauma of victims through the legitimate process. Moreover, if the situation arises whereof the state and non-state political and military actors need to be held responsible, these actors may attempt to seek immunity by bringing the process in jeopardy which is against the basic norms of TJ process.
Role of International Community
It is obvious that the international community, including the United Nations, has deeply involved in framing Nepal's TJ process. However, they have strong reservations about ongoing TJ mechanisms, and its mandate and jurisdictions, particularly on amnesty provisions. As a result, they have refused to provide technical and financial support that is essential to accelerate the TJ process. Instead, they are working with the victim's groups to increase awareness of the concern stakeholders and strengthen their voices through developing common understanding.
Without international support, Nepal's TJ process faces difficulties to move towards a conclusion. Such support will help to bring legitimacy and credibility in international forms and platforms, as well as promotes the country's commitment to human rights and justice. Therefore, technical and financial support of the international community, including the United Nations, inter-governmental agencies, and bilateral and multilateral agencies remains vital for the success of the TJ process. It is mainly important to ensure the protection of witnesses and manage the scarcity of resources such as human, financial and logistics.
While the country's TJ process seems moving nowhere due to the incompetence of the existing mechanisms, the international community must be vigilant to put pressure to Nepal's government and political parties for the appointment of fresh commissioners, and expansion of its mandate and jurisdictions. Even though the TJ process must be lead with national ownership, international communities are placed in perfect positions to advocate for the inclusion of the 2013 Supreme Court verdict through legislative reform, which will pave the path for the establishment of effective TJ mechanisms for the promotion of peace and justice in the country.
In response to the writ, SC ruled that the amnesty for the accused of serious human rights violation was not acceptable; the commission’s freedom, fairness, and trustworthiness must not be compromised; serious human rights violations must be criminalized; victim and their family must be provided with adequate reparation; and reconciliation must be promoted in the society. These efforts can only be institutionalized through the partnership between international community, and victims and civil society, particularly human rights community.
The strategies of TJ mechanisms should be designed within national requirement aiming to address the victim’s needs, concerns and aspirations by integrating different components of TJ, including seeking the truth, criminal prosecution, the formation of TRC, reparation, and vetting, and institutional reform. If such mechanisms are properly established with a broader mandate, it can play an important role in building social harmony, end impunity, and assurance of peace and justice.
However, the attempt of granting absolute immunity by political actors will be the disastrous move for sustainable peace and justice, social harmony and good governance as well as rule of law, human rights, transparency, responsiveness, and accountability. It will also jeopardize the preventive efforts of non-repetition of serious human rights violation, initiatives of reconciliation, and bring the perpetrators into judicial process and recommend amnesty through a proper legal procedure. Therefore, there is a need for partnership between national actors and the international community to properly handle TJ activities through the legitimate process.
Principally, the role of the international community should be supportive of the national initiative. However, it is also relevant that international community can play a constructive role to bridge the gap between the government and stakeholders by initiating dialogue, and can also strengthen the national process by providing technical expertise, as well as financial and logistic resources that will speed up the TJ activities, efficiently, effectively and professionally.