If justice delayed is indeed justice denied, Nepal is a lost cause. Although the establishment of a democratic republic in 2008 finally put an end to 240 years of the Shah dynasty’s hold on power, the former kingdom’s path to democracy has left the country in a justice vacuum. In 1996, the “People’s War” launched by the Communist Party of Nepal erupted into a brutal civil war from 1996-2006 between the Maoist rebels and the King. For a decade, an intense climate of fear and repression enveloped the country: over 13,000 were killed, and 1,300 remain missing today[i]. The signing of the Comprehensive Peace Agreement (CPA) in 2006 was supposed to mark an official end to the conflict. It was accompanied by a pledge on behalf of the new coalition government to set up a transitional justice system in order to account for the past and change the future. Yet, eight years later, impunity still rots at the country’s core. There has not been a single investigation into any of the thousands killed or disappeared during the armed struggle and correspondingly no prosecutions for the severe human rights violations carried out on both sides. Void of accountability, Nepal seems to have been left to be haunted by the ghosts of its past.
Until – it seems – now. If instead justice is considered better late than never, Nepal may have just taken its first tentative step in the journey towards achieving it. Despite being eight years out-of-date, the bill which was supposed to have been implemented immediately after the 2006 peace accord was finally passed by Parliament. On 26th April, the long-awaited formation of a Truth and Reconciliation Commission (TRC) and a Commission on Enforced Disappearances (CED) marks a new beginning in Nepal as the country sets to delve into the secrets of its past[ii]. With a mandate to investigate every war crime committed during the civil war, provide reparations to the families whose lives have been transformed by the conflict, and give answers to those who are still missing loved ones, there is hope that those who have been denied the truth for too long will be given answers about what really went on in the decade-long rampage. The bill requires the government attorney to file all cases forwarded for investigation by the TRC, and Parliament has affirmed to set up a separate commission within 60 days to implement the TRCs recommendations. The mechanisms are now in place for Nepal’s hitherto unacknowledged past to be illuminated and, most important, to allow for a peaceful future to blossom from the roots of reconciliation.
Yet, the landmark bill brings with it a dark shadow which casts clouds over Nepal’s journey towards justice. Human rights groups have raised concerns over the bill’s ambiguous provision which leaves the door wide open for the TRC to grant amnesties for perpetrators of severe war crimes. Although the bill contains specific exemptions from amnesty for rape, international commentators criticise the bill for retaining the language from a previous executive ordinance in 2012 which was rejected by Nepal’s Supreme Court for being unconstitutional, and who instead recommended for the government to introduce a new bill compliant with Nepal’s international legal obligations[iii]. In the eyes of many, the failure to do this has confined justice in Nepal to the shadows. The formation of a truth commission which was supposed to “ensure justice for the victims, not amnesty for the victimisers”[iv] is out of sight.
Such a delicate balancing of truth and justice is one which many countries facing a post-authoritarian transition have been forced to confront. The exchange of amnesty for war criminals in return for the full public disclosure of truth has been resorted to as a problematic but pragmatic solution in countries where those who led the war have also gone on to lead the peace – the landmark example of this strategy behind the post-apartheid truth commission in South Africa.[v] However, in a trend that has been growing across South America, a number of countries including Uruguay, Argentine and Peru have confronted this “truth for amnesty” compromise and revoked their amnesty laws in order to bring war criminals to justice. Yet, the process is a politically difficult one when the possibility of prosecution threatens those with steadfast political connections who are deciding which way the balance between truth and justice should swing.
Such a situation exists in Nepal where amnesties are far from new on the scene. In the years since the alleged 2006 peace accord, hundreds of criminal cases have been withdrawn for individuals accused of involvement in crimes including murder and abduction “due to political reasons”[vi]. Worse, some of the worst perpetrators of human rights during the civil war have been promoted despite allegations against them; including the promotion of Colonel Raju Basnet to Brigadier General in 2012 – a man who was in charge of the Bhairabnath Battalion at a time when enforced disappearance were rife, and who is accused of personally committing acts of torture. It will clearly require a major sea-change by the government if the new truth commission is to recommend human rights perpetrators for trial rather than amnesty, and if the values of justice and accountability will prevail over pragmatism and politics.
The ultimate question is whether Nepal’s truth commission amounts to the country taking one step forward or two steps back. On the most pessimistic level, if the current trajectory continues, at least the victims can take comfort in knowing the truth about what happened to their missing loved ones; even if the ensuing amnesty of the individuals implicated in these crimes continues to cause consternation. Looking more optimistically, the hope is that internal and external pressure, starting from the individual level of victims and stretching all the way up to other amnesty-revoking South American countries and the wider international community, will nudge the TRC along the truth and justice route, rather than the either/or scenario. Whether reconciliation and justice follows is yet to be seen; but, either way, the truth is looming. The past cannot be buried any longer: it is time for the skeletons in Nepal’s closet to be let out.
[vi] Amnesty International, January 2013