By Ram Kumar Bhandari
For the first time since the end of the war, conflict victims have secured a victory against the state and the parties who, until now, have blocked, dodged and mocked our demands. A joint submission bringing together the voices of seven national conflict victim’s organisations was submitted to the Supreme Court
demanding that it intervene in the government’s effort to establish a truth commission that would stand in clear violation of international laws against impunity. This commission, if allowed to form, would serve to protect perpetrators of human rights violations rather than support victims’ needs for truth and justice.
On April 1, the Supreme Court responded positively to our writ demanding time to fully review the faulty ordinance before the proposed commission can be formed.
The writ petition is a historic step. Together, we have challenged the amnesty clause and the provisions for forced reconciliation in the CJ government’s ordinance. We do not demand a rejection of the truth commission process nor the ordinance in its entirety, but an amendment to clauses (3) (13), (23), (25) and (29): that the commission define disappearance as a crime against humanity and that the process uphold the pursuit of truth, justice and reparation as rights guaranteed to conflict victims. These demands are not extreme: we are merely asking that the government of Nepal meet already established standards of international law that all states are bound to.
To be quite clear, conflict victims and survivors in Nepal want—and need —a truth commission. But we want a commission that strengthens the search of truth and justice, not one that will serve to protect war criminals, as is the one set out in the ordinance. Moreover, as conflict victims, we cannot abandon the process. If we walk away, we are turning our backs on our husbands, fathers, children and wives who remain disappeared, dead or damaged while the men responsible are free to occupy powerful positions in the state and the military.
We must find a way to move forward. The ordinance bill needs a full reinvention in terms of its content, driving principles and procedural approach. First, consultation with victims is a fundamental responsibility, set out in international law, for the establishment and operations of any justice-seeking body. Second, there are clear international standards that require a truth commission to be independent of the government, be transparent in its operations, and be established and operated through a participatory process with civil society and victims. Third, to be successful, a truth commission requires a political environment that is willing and able to uncover the truth about past crimes. This environment does not exist in the elite circles that have guarded the process until now. That is why the process must open to a public deliberation for it to have any hope of being fair and legitimate.
As a joint victim’s alliance, we demand an amendment to the ordinance within three months to meet standards and form a truth commission in full trust and ownership of the victim’s community.
It is important for us to remember, and for the public to understand, that the ordinance is indicative of a larger political climate in which the voices of victims are silenced. We have stalled the establishment of a flawed and illegitimate truth commission, but this is a small victory in the face of our greater challenge of changing transitional justice in Nepal from closed-door horse trading amongst political elites into a political culture that is participatory and democratic.
In this regard, Nepal is representative of a global trend. Transitional justice, as an idea and a practice, first emerged in grassroots victim’s mobilisation against Latin American authoritarianism. In the years since, we’ve seen the project turned on its head. Transitional justice today is the terrain of human rights lawyers, international experts and NGOs. Although internationalisation of transitional justice has lead to the spread of robust standards, it has also pushed victims out of the conversation by creating a political arena easily navigated by state and local elites who are well versed in the legalese of human rights work.
This is the legalistic and highly politicised juggernaut Nepal’s conflict victims are struggling against. Since the beginning of peace process, the voices of conflict victims were sidelined and instrumentalised by the state, various interest groups and political parties. Their signatures promising community reconciliation in reality served as a pact between Maoist and the security forces to hide an agreed on mutual impunity under a pretext of reconciling and moving on. Even today, both perpetrator parties continue to demand the quick formation of amnesty commission to clean the slate.
But for a brief moment Nepal’s conflict victims can forget the challenges ahead and celebrate that the tides against us were reversed. We can celebrate that we achieved this by acting as a united front through the efforts of the Committee for Social Justice, the Conflict Victims Committee Bardiya, National Network of Families of Disappeared and Missing, Conflict Victims Orphan Society, Conflict Victims Society for Justice, Conflict Victims National Society and Reena-Arpan Dalit Uthan Munch Kavre. The existing victim’s organisations have a great deal of support and are seen as a legitimate voice, because they are not beholden to donor money and agenda as are so many organisations that operate in Nepal. Our commitment and emotional attachment to this issue, as well as our moral integrity, has been a touchstone for thousand of families over the past years.
Six years after Nepal’s peace agreement promised a robust transitional justice agenda, the prospects for independent, victim-centered truth and disappearances commissions are more distant than ever. The victim’s movement in Nepal maintains a clear demand for a transitional justice process built around strengthened victims’ access to justice, economic support for families, and the unqualified truth about the fate of loved ones.
Nepal’s ten-year war sits within a continuum of structural violence stretching long before and after the armed conflict. It follows that the communities most affected by the war remain marginalised and stigmatised in a political and judicial system dominated by Kathmandu elites and foreign assistance workers. Moreover, both the Maoist party and the NC-UML have consistently supported a transitional justice process conducive to mutually assured amnesty, which is also supported by security chiefs and bureaucrats. Their loyal agents also played with victims/survivors to favour amnesty and adopted a suitable lobbying tactic with donors to consume a flood of support in the name of victims’ justice. Many fear an independent truth commission and are conspicuous in their efforts to halt it in this political chaos that has only made worse the insecurity felt by victims.