To move Nepal’s transitional justice process towards conclusion, it is recommended that the two commissions be buttressed with financial and human resources from the Government and the international community. The National Human Rights Commission, as the leading constitutional body in the field, must provide technical assistance to the commissions and coordinate the international support they may need.
As far as the running court cases of the conflict era are concerned, there is need for creative thinking. There are two categories of such cases: a) the few which have been filed by the victims themselves and, b) those filed by the police against Maoist cadres and leaders.
The Attorney General must be given the power to choose the cases to be transferred to the special court based on the interest of the victims and attached gravity. The remaining running cases may be transferred to the two commissions for further investigation, to be recommended for prosecution if serious violations are identified.
There have been efforts to link Nepal’s transitional justice process to crimes against humanity, war crimes and even genocide. While there is no doubt that Nepal has seen serious violation of human rights during the conflict, it is not clear if the listed abuse fall under such categories. Given that these crimes are not criminalised in the Criminal Code, ambitious efforts to achieve a higher threshold of justice may impede addressing serious human rights violations.
Overall, there is need for a realistic approach in taking up prosecutions, as the parties to the conflict have embraced peace and constitutionalism, and also reiterated their commitment to human rights. On the other hand, we cannot ignore international standards, including on the use of child soldiers in conflict, which the Security Council itself is engaged with.
The normative framework for transitional justice is crystallising simultaneously in different parts of the world in post-conflict contexts. From within South Asia one can hope that Nepal, with all the delays and disappointments thus far, will show the way and contribute to the global development of the principles of transitional justice.