Transitional Justice for Nepal
Without methods of reconciliation, the social fabric will be strained and will become a breeding ground for future conflicts, warns LORI MIZUNO. Her suggestion: A formula of both truth and some form of justice.
Big changes are on the horizon for Nepal. Despite some recent roadblocks, such as arguments about disarming rebels and political stalling, Nepal appears to be on its way to becoming a more democratic country. However, for the 13,000 individuals that lost their lives and the millions that have suffered during the conflict, this new form of government may not be enough to forgive and to forget. Transitional justice— the mechanisms societies emerging from armed conflict or authoritarian regimes use to deal with past atrocities— may be one method for victims to find justice.
There are many examples of the application of transitional justice, in places as diverse as South Africa, East Timor, and Sierra Leone. These countries have applied some forms of transitional justice and reconciliation methods suitable for post-conflict situations. These methods include: trials, truth commissions, reparations, and institutional reforms. However, their implementation can be challenging. Many of such challenges revolve around the timing and strategy used. It is not merely enough to replicate only the methods used in other countries. Careful consideration must be taken in developing strategies that will fit the Nepali context.
Nepal has suffered not only from violent conflict, but also from a structural violence of pervasive marginalization of ethnic groups, lower castes, and women. And then, for centuries the institution of monarchy has wielded unlimited power at the expense of the rights and freedom of ordinary citizens. These concerns and how to address them have not been discussed or considered in such a way that will be inclusive of all Nepalese. Without resolving these issues there is a serious threat that Nepal will relapse into conflict.
In fact, in their recent book Contemporary Conflict Resolution: The Prevention, Management and Transformations of Deadly Conflict (Cambridge: Polity Press, 2005), Hugh Miall, Oliver Ramsbotham, Tom Woodhouse write that, on average, a post-conflict country has a 50 per cent chance of returning to violence within the first five years (See page 222). It is vital that Nepal, its citizens and their friends must take steps to prevent the country from becoming a part of such worrisome statistics. In a new democracy, social problems of inequality must be addressed. Additionally, institutions, including the armed forces and judicial system, must be reformed.
Currently, Nepal is anxiously awaiting the establishment of a constituent assembly, a body that will form a new constitution and pave the way for a new Nepal. But, as elections draw near, there is a fear that those that will hold power will be the very people who committed human rights violations in the past. In such a case, it is very likely that the government in power may give blanket amnesty to the perpetrators so as to help them avoid prosecution. Even today, political discussions do not include the disappearances of soldiers and Maoist cadres, or the deaths of civilians at the hands of the Nepali Army and Maoists. If one side begins to point a finger at the other, it is likely that another will be pointed back at them.
The argument for blanket amnesty, as it has been given in so many countries, is that justice must be the sacrifice for peace. Such a decision will not offer much solace for those that must live in the same community as those that have killed a loved one or with the knowledge that those responsible for crimes remain free. Without methods of reconciliation, the social fabric will be strained and will become a breeding ground for future conflicts. A system must be developed not only to establish truth, but provide some form of justice for victims. With the judicial system in shambles and filled with monarchist appointees, a truth commission may provide one outlet for justice and reconciliation.
The South African Truth and Reconciliation Commission (TRC), established in 1995, after the fall of apartheid, has become the model and standard for truth commissions. The TRC heard testimony from both victims and perpetrators to find a more comprehensive view of the conflict. Though there is much debate about the efficacy of the TRC in establishing justice for victims, it did allow mothers to know what happened after their sons disappeared, enabled victims to hear an apology, and for the stories of the brutality of Apartheid to be told.
Establishing a truth commission, however, should not limit prosecutions. Both the national justice system (once reformed) and the international justice system should be involved in holding trials for those who committed gross violations of human rights and those most responsible for the continuing conflict. In the case of the Rwandan genocide, there is a three-tier process in prosecutions. The International Criminal Tribunal for Rwanda (ICTR) in Arusha prosecutes those that were the “masterminds” of the genocide or committed large-scale violations of human rights. The national justice system handled cases of individual murders and rapes committed during the genocide. At the community level, the gacaca system – an indigenous form of community reconciliation – “tried” individuals accused of looting, property destruction, and smaller forms of violence. The Rwandan example is illustrative of the innovations needed in particular contexts.
The purpose of transitional justice measures is not limited to establishing right or wrong, truth or lie; the concept of acknowledgement is also vital for reconciliation. One such method is for reparations to be conferred – a form of government institutionalized apology. With the dwindling economy of Nepal, this may prove difficult. However, reparations can come in different forms, and are not limited to monetary compensation. In Chile, for example, the families of victims were provided access to healthcare, given pensions, and their children given scholarships for schooling. These are symbolic reparations that provide more of a holistic approach to compensating victims by providing necessities.
The task of establishing justice through transitional justice is daunting, and will challenge the capacity of Nepal’s citizens, civil society, and government. While it remains to be seen whether the days of armed conflict are over permanently or just temporarily, the residual effects of the conflict remain. Discussions on implementing transitional justice systems must begin soon and the civil society should not wait for government and political parties to step in. As intermediaries between citizens and the government, the non-governmental organizations (NGOs), the community-based organization (CBOs), and nonprofits that were so vital in the fight for peace, must once again fight for justice and the needs of everyday Nepali people. If Nepal is to move forward and establish a durable, lasting peace, the needs of victims must be addressed adequately and appropriately.
Lori Mizuno is a Master's candidate at New York University's Robert F. Wagner School of Public Service, in New York City, USA. She maintains interest in international human rights and is currently interning at Collective Campaign for Peace in Kathmandu, Nepal through the Advocacy Project (www.advocacynet.org).
Posted by Editor on August 4, 2006 11:02 PM