A few months ago a group of transitional justice experts from Colombia came to Kathmandu, sharing their country’s experience in post-conflict reconciliation with Nepal’s government attorneys and human rights lawyers. Colombia’s ability to resolve its long-running FARC insurgency, and how it has grappled with transitional justice, has lessons for Nepal even though our conflict ended long before Colombia’s.
Soon after the visit, the government proposed amendments to the Transitional Justice Act, which was previously condemned by conflict victims and the international community for not adhering to accepted human rights values, of which Nepal is signatory. It had provisions for blanket pardon of war crimes, but families of conflict victims have doubts that, even with the new changes, they will ever get justice.
The draft amendment is heavily influenced by Colombia’s ‘restorative justice’ practice, which focuses on reconciliation and reparation rather than punitive measures. Even so, the amendments are much better than the existing law (The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014), which is full of loopholes allowing former guerrilla commanders and state security personnel to go scot-free.
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The proposed law is an improvement because it is broadly in tune with a 2015 Supreme Court verdict on a case filed by Suman Adhikari, whose father was dragged from a class he was teaching and executed by the Maoists in Lamjung in 2002. The Apex Court had denied amnesty for perpetrators of four types of crimes: extra-judicial killings, enforced disappearances, rapes and torture.
This means Maoist cadres who tied Adhikari to a tree and shot him in the head can be taken to the court. The army officers who detained, raped and killed 14-year-old Maina Sunar in Kavre will also have to face prosecution. Ex-rebels or security personnel charged with similar atrocities cannot be pardoned.
However, just like the existing Act, the draft amendment is so loophole-laden that it can be abused by powerful politicians to get themselves off the hook. For example, if passed by Parliament into law, it will allow transitional justice bodies to reduce the severity of sentencing if perpetrators help with the investigation, or apologise and express a commitment to not repeat their crimes.
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To put it more precisely, if ex-rebels are convicted of abducting and murdering a civilian and slapped with a 10-year jail term, they will have to spend only four years in jail. And the draft amendment also has provisions for ‘open jail’ or ‘community service’. War criminals could easily walk free even if found guilty, and there isn’t much clarity on what constitutes ‘community service’. Will joining a political party and contesting polls be defined as ‘community service’? The Act leaves a lot of elbow room.
That is exactly why conflict victims are reluctant to accept the draft amendment: they suspect that culpable politicians will cunningly manipulate the law and get themselves off the hook. They are seeking some foundational laws based on which justice can be delivered. For example, they want to know beforehand whether all will get 75% discounts in sentencing, or if there will be criteria determining who deserves reduced punishment. They want to know whether convicted criminals will be able to walk free.
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After waiting nearly two decades for truth and justice, families of conflict victims are at the end of their tethers. They are lonely and helpless. Some do not expect the government to do anything, so they have given up even demanding justice. The former enemies are now the state, and they do not want to revisit wartime atrocities. The main opposition NC is led by someone who let the army detain and murder innocent people by imposing a state of emergency in 2002. They feel neglected, and passing the new TRC law without addressing their concerns will be a blunder.
Conflict victims had always pinned their hopes on the UML, which was not directly involved in the war and played a strong role in advocating for transitional justice after the 2006 ceasefire. But the UML no longer exists, and the Maoists have subsumed themselves and their conflict-era atrocities into the merged Nepal Communist Party.
Prime Minister K P Oli, who also co-chairs the new party along with ex-Maoist supremo Pushpa Kamal Dahal, has already gone back on his justice commitment for conflict victims. He recently endorsed the presidential pardon to Balkrishna Dhungel, a convicted murderer. Oli has not been pressing Dahal to arrest one of the accused in the murder of Krishna Ahdikari, whose mother Gangamaya is in frail health on her hunger strike.
Replicating Colombia’s restorative justice formula in good faith could work in Nepal if conflict victims were backed by leaders with political will, and a strong civil society. But they are all alone, and the state is indifferent to their pain.
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