Transitional Justice in Nepal: The Perspective of the Victims

Transitional Justice in Nepal: The Perspective of the Victims©RKBA wife looking for her disappeared husband
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This paper seeks to clarify the current needs of victims and what victim-centred transitional justice means to them now, more than 8 years after the end of Nepal’s armed conflict (1996-2006) (the “conflict”). The paper aims to understand the current practice of transitional justice from a victim’s perspective and to recommend how a victim-centred transitional justice process might be articulated. Victims’ needs should be understood the way the victims understand the needs themselves. Therefore the whole question about “transitional justice” in Nepal should take as the point of departure the needs as expressed by the victims. Addressing those needs will satisfy the victims and facilitate reconciliation and sustained peace for the future

 

The social impact of the conflict was extreme, with victims (especially the disappeared and rape victims) stigmatized in their families and communities. Families have long sought recognition of the incidents that occurred and recognition of themselves as victims, and demanded a comprehensive reparation process to create an environment for reconciliation.

 

The organisation of the victims and their associations represents the most effective way for victims to contribute to transitional justice process. The primary challenge for those trying to advance a transitional justice agenda is to ensure that advocacy represents an agenda rooted in the experience of those who need truth, justice, livelihood support and sustained peace at local level. It should be divorced from victims’ realities, focused on trials or state-level institutions without victims’ engagement and their participation without fair assessment of local priorities.

 

While unaddressed grievances of the conflict live on, Nepal’s post-conflict agenda has been dominated by political elites and human rights agencies that lead the discussion through their own agendas. While limited progress has been made at the political level, peace and reconciliation remains elusive at the local level.

 

  1. Aim of the Paper

 

This paper has been produced with the aim of making a positive contribution to on-going discussions about the transitional justice process in Nepal, particular in the work of the two Commissions, TRC and CIEDP. The objective is to clarify the current needs of victims and what victim-centred transitional justice means to them now; to analyse current and future challenges in the transitional justice process and to suggest ways forward.

 

This paper will contribute to the articulation of the views of victims in Nepal of what it means for a transitional justice process to be “victim-centred.” It is hoped that this analytical paper will facilitate a more victim-centred understanding of the transitional justice process as well as the development of a core set of politically acceptable principles regarding transitional justice amongst political parties and other stakeholders.

 

  1. The situation of the victims of the conflict

 

The decade-long conflict brought about enormous pain and suffering for many people. Several NGOs have documented different cases of human rights violations during this period. The conflict left a legacy of some 15,000 dead;[2] 9,000 women who lost their husbands,[3] 833 people abducted, 4,305 injured[4] and more than 1,400 people[5] that were disappeared during the conflict. The National Human Rights Commission of Nepal has reported that it has received more than 3,000 complaints regarding disappeared persons during the armed conflict. On recent data of RRU (Relief and Rehabilitation Unit) of MoPR has recorded 17886 dead, and 1530 disappeared, the database are varied, there is no actual database in the official record.

 

This paper refers to all those unaccounted for during the 10-year armed conflict in Nepal.

 

Whilst the primary victims were the victims of disappearances, extra-judicial killings, torture, rape, displacement and loss of property or damaged property, their families are also victims, a fact that is often overlooked.

 

For a victim’s children, parents or wife, the principle unit affected by the incident is the family. The family will also be the principle coping mechanism, and in the case of Nepal this will be the extended or joint family that is the building block of social organisation. Victims’ organisations are the representatives of victims, aiming to articulate their demands. They can bring all families with similar pain and experiences together and provide spaces to the families, with victims’ organisations as a platform for families to develop mutual support and solidarity. Victims and their families use their own understanding and set their agenda, which is important in the transitional justice process.

 

In Nepal the victims’ groups are still facing both exclusion and other challenges to be a part of transitional justice processes. Victims are willing and able to participate in the transitional justice process. They have undertaken different campaigns at a grassroots level, reaching out to the 73 districts affected by the conflict, and with the aim of carrying the victim’s pain and suffering and bringing the local context into the national picture.

 

They themselves, within victims’ families and communities can organize, speak, and write their stories: they do not entertain the unnecessary manipulation that has been attempted in their names.

 

Victims’ groups attach huge importance to advancing the transitional justice process. However, it is equally important that victims’ groups are ready to be a part of the transitional justice process. Without victim active participation, the transitional justice process cannot guarantee a victim-centred approach.

 

The challenge is how to create such an environment where victims come together to participate in the transitional justice process in a principled and united way. The government and the two Commissions must help victims create this environment, not only by empowering victims, but also by constructively seeking to understand and address the victims’ needs in a dialogue with the victims.

 

Victims and victims’ networks have time and again demanded truth, justice, reparations and guarantees of non-repetition for genuine reconciliation. But for them the Government-led transitional justice process has been a disgrace. Neither party to the conflict has so far acknowledged, through a formal, official declaration that thousands of persons were victimized as a result of the conflict. Their status as victims with rights has never been recognized.

 

This attitude reflects the lack of political will to address the needs of people affected by the conflict, especially those who lost their family members and continue to struggle on a daily basis to make a living in the face of adversity and social stigma. Surviving families and their associations feel that Nepal’s transition is guided by political, rather than humanitarian or moral concerns, but they continue to hope for justice.

 

Furthermore, victims continually assert the need for dignity and respect in the transitional justice process through consultation, participation and representation from the policy level through commission implementation. Despite victims’ continued pleas for engagement, the political parties have shown disrespect and continue to use victims to their political advantage. These realities point to the distinct need for a serious review and constructive dialogue at a wider public level including the recognition that victims and their associations have never felt involvement or ownership of the transitional justice process.

 

After years of being denied justice at a practical level, conflict victims have adopted various coping strategies to move forward with their lives. With various provisions and procedures of transitional justice being debated in Kathmandu for so long, very little attention has gone into probing what justice means to victims and how denial of justice for a prolonged period has changed the conventional and legalistic notions of transitional justice in the minds of victims.

 

Until a deeper victim-centred understanding of justice is reliably articulated, the commission process will not be able to address the core needs of victims.

 

 

 

  1. Conflict Victims Common Platform

 

To gain strength and solidarity, frontline activists and organisations from both sides have reflected on their shared experience and set about forming a collective campaign through organisations such as Conflict Victims Committee, Bardiya (CVC, 2006), Committee for Social Justice, Lamjung (CSJ, 2007), Conflict Victims Society for Justice (CVSJ, 2008), National Network of Families of Disappeared and Missing persons (NEFAD, 2009), Solidarity campaign for justice (SOCAJ, 2010), National Victims Alliance (NVA, 2013) and – most recently and most broadly – the Conflict Victims’ Common Platform (CVCP, 2014).

 

CVCP is now the umbrella organization of victims of the conflict from across Nepal, from both sides of the conflict and representing all kinds of victims. CVCP has a strong focus on victim-centred approaches to transitional justice as well as on national coordination of victims’ groups, victims’ mobilisation, informal process of truth and memory, and policy lobbying in Nepal’s transitional justice process.

 

All these initiatives have given strength to the victims, built their capacity at the grassroots and produced leaders who try to reach out to the larger community of victims in the districts. When the victims agreed on a common agenda of truth, justice, reparation and reconciliation, which has been a wider effort of victim-centred transitional justice approach in Nepal from the victim’s perspective, they have gained a national voice for truth, memory and justice.

 

The local campaigns and movements for victims’ rights have shown significant change and progress within families and victims’ communities. On the local level, such movements empower people and address their need for contact with their peers. Some of the psychosocial issues are actually addressed by the movement itself. For example, family members come and join the organization, which gives them self-satisfaction through sharing feelings, crying and fighting together with a future of hope. Their pain and hardships are transformed into strengths to fight injustice and create self-empowerment. It encourages the victims’ community to deepen solidarity and manage campaigns that can intervene in the whole political process and develop transitional mechanisms.

 

This has resulted in the role and relevance of victims being progressively increased, and is impacting both to empower victims themselves to struggle for their rights and to increase attention towards addressing their needs and rights in the process.

There are various challenges experienced during the campaign by the members and their leaders. Some key challenges are mentioned here:

  • The day-to-day livelihood and responsibilities of families, which result in the justice movement lacking cohesion and strength.
  • There are often strong social stigmas affecting women, such as wives’ actions being viewed as the cause of their husbands’ disappearance/or death.
  • Lack of adequate technical and financial resources to properly document evidence and the memories of affected families.
  • Lack of coordination between individuals and organizations working for the same cause.
  • Division between victims and communities because of specific interests and lobbying by political parties

 

4.             Transitional Justice Mechanisms

 

The formal peace process has given rise to a range of measures that seek to institutionalise peace, including the establishment of a Ministry for Peace and Reconstruction, integration of ex-Maoist combatants, and the creation of a Peace Trust Fund, to use donor support to strengthen peace.[6] There has been no comprehensive reparations process. The Interim Relief Programme (IRP) was implemented starting in 2008, and provided relief to over 100,000 victims, the majority of whom were displaced as IDPs during the conflict. The IRP included significant payments to the families of those killed and disappeared, but has no link to state obligations in the light of violations, or a wider acknowledgement of their victimhood, while many types of victims (rape, torture, serious injury) remain ineligible for benefits.

 

The Comprehensive Peace Agreement[7] signed in 2006 provided for the establishment of both a Truth and Reconciliation Commission (TRC) and a Commission of Investigation on Enforced Disappeared Persons (CIEDP), within six months of the agreement.[8] The continuing commitment to impunity of all political parties and of the security forces has slowed down and compromised their formation, but both Commissions were ultimately formed in February 2015.The general trend since the signing of the peace agreement has been a transitional justice process that was largely instrumentalised by political actors to advance their own interests. Against this background, it was uplifting to see the Supreme Court of Nepal annul the amnesty provisions of the Act on TRC and CIEDP, saying that they are incompatible with established principles of justice, constitutional provision, international law and the Supreme Court’s earlier verdicts on victims’ demands. Civil society nevertheless remains highly sceptical of the commission process and is contemplating boycotting them. Some international donors, too are, are sceptical.

5.             Victim-centred approach: victims’ expectations

 

  • The first and most obvious expectation victims in Nepal have is that the ultimate goal of implementing transitional justice measures – truth, justice, reparations and guarantees of non-recurrence – must be to provide recognition to victims, foster trust and strengthen the democratic rule of law. None of this can happen on the backs of victims, without their meaningful participation.

 

To illustrate, truth-seeking requires the active participation of individuals who wish to express their grievances and report on the facts and underlying causes of the violations and abuses which occurred. Also, reparations will only be successful if victims and civil society at large have been involved in the design of the schemes, so the measures are commensurate to the harm inflicted and contribute to the recognition of the victim as rights holders.

 

  • A second expectation is that reconciliation is not to be conceived as a substitute for justice. In many parts of the world, reconciliation has been used by members of predecessor regimes as a demand for victims to forgive and forget and, therefore, as a way of placing one more burden on the victims. This must not happen in Nepal.

 

  • A third expectation is that of placing special emphasis on the centrality of victims in the work of the two truth commissions – TRC and CIEDP. Holding public hearings can in principle afford many opportunities to make the victims visible, to give them a well-deserved space in the public sphere.

 

  • A fourth expectation is recognition, as said. Long-term marginalization by the state of many communities that were heavily impacted by the conflict leads to demands for recognition through demands for memorialization, martyr status for the dead and reparation. The issue is linked to the long-term social exclusion that facilitated their victimhood. In this sense, reparations and victimhood in the conflict are inextricably linked to ongoing political debates in Nepal about the role of minority communities and acknowledgment of histories of exclusion:

 

“Nobody asked about my everyday needs and family problems. The major challenge is to continue individual, family and social life. I have a little trust that these commission processes will address my needs and sufferings.” (Victims’ leader, Kavre, 2015)

 

  • A fifth expectation is to receive economic support to ensure livelihood, and the addressing of other immediate needs such as psychological and health concerns. In general, victims of the conflict do not understand the notion of transitional justice, but what matters is that justice to them means living with dignity and seeing their daily needs fulfilled. They expect restorative truth and justice done. The victims of the conflict continue to emphasize socio-economic needs, associating them with justice. In the everyday lives of conflict victims, the meaning of justice relates to their psychological and material needs.

 

Victims and their families want to continue their individual and family life comfortably with full dignity and respect in society. The main common challenges are economic and livelihood concerns at present, but there are a variety of needs and priorities based on their situation, geography and nature of their victimization.

 

Different age groups like youth, the elderly, injured, disabled, and victims of sexual violence, and women – especially the wives of the disappeared and widows – have specific needs. (For more, see chapters 8 and 9.)

 

  1. The lack of a victim centred approach

How can a victim trust the transitional justice process? Both process and approach play a significant role in letting victims learn, act and represent themselves in developing and implementing their justice concerns as an engaged participant to drive the transitional justice process. In the Nepal context, victims have little or no role in this process; instead they are forced not only to follow but also to accept the decisions made on their behalf with no consultation.

 

As a result, victims’ transitional justice needs and agendas are not represented sufficiently, whilst their role and capacity to add constructively to the process through participation have been underestimated. Victim participation, representation and role as engaged participants must be defined and ensured in the overall process of policy drafting and implementation to ensure their agency while placing victims’ agendas at the centre of a process that claims to aid victims.

 

It is important for transitional justice mechanisms to focus on the process of engaging victims in their design and implementation. Most often, victims are excluded from policy level debates. The transitional justice process and the mechanisms (such as the two commissions, and a potential reparation scheme) through which they work “tend to be prescriptive and top-down: they are created by elites (often those who were themselves involved in the conflict that preceded the transition) and supported by an international community that is disconnected from the context on the ground and local practices” (Robins, 2011:75-98).

 

It is equally important to reconstruct history – and understand conflict’s impacts – from a victims’ perspective, at a micro level. It is critical to understand those who have lived amidst conflict, both as survivors and witnesses, who have suffered and continue to suffer due to the enduring legacy of their lost family members.

 

  1. A flawed reconciliation

 

The strong emphasis political actors place on reconciliation between victim and perpetrator, without much consideration for victims’ needs, is equally problematic. Individual reconciliation is not an event but an extremely personal and complex process that is difficult to achieve through a mechanism such as a truth commission, as truth (in whatever form) will not automatically lead to willingness of a victim to reconcile with perpetrator. For example, without an acknowledgement of the crimes committed in the past, without addressing even the most basic needs of victims and without including them in the process of transition, victims are not likely to want to reconcile (Interaction with victims’ representatives, Kathmandu).

 

The victims and their family members who have suffered express reluctance towards reconciliation, as it is related to forgiveness and they do not want to forgive and forget the loss.

 

“If others make a decision for our destiny and prescribe us to forgive and amnesty in the name of peace, we will take a revenge and not participate in the false reconciliation process.” (Son of the disappeared father)

 

The issue of reconciliation is discussed reluctantly; where it was families expressed feelings of being excluded and stigmatised because of their perceived role in the conflict. An addressing of such divisions demands a local process, centred on the community, rather than a truth commission based in far away Kathmandu.

 

“The forced reconciliation will be broken and the amnesty provisions may fuel to promote a culture of revenge in future. Without fair justice to the victims and hiding truth for longer mean inviting newer conflict in society. If I don’t get answer and the alleged perpetrator in my case goes free, I will take revenge” (Son whose father was killed during conflict, Kathmandu, July 2015)

 

  1. Shared features among victims

 

There are common needs to find the truth, recognition, memory issues, psychosocial, medical treatment, education and rehabilitation, income generation and employment opportunities of the surviving families. There may be differing views and a range of priorities concerning prosecution, amnesty and legal issues, but common understanding concerning social respect, economic needs and sustainable livelihood, which are primary concerns for a majority of victims and surviving families.

 

Those who have lost sons and daughters demand a pension and health care, children who lost parents need education support up to a higher level, as well as employment and social rehabilitation.

 

Women, especially victims of sexual violence, wives of the disappeared and widows in rural villages are suffering socially, economically, culturally and psychologically, and need special measures to address their needs.

 

There are still social and cultural stigmas for Dalits and other minorities. Specifically, the hill Dalits, Dalits in the eastern Terai and indigenous Tharu women in the western Terai need special treatment, including linguistic support to even understand official processes. This again links to broader political processes to address not just their victimhood in conflict but also their victimhood as second-class citizens of Nepal.

 

“As far as victims are concerned, the ultimate goal of transitional justice processes and interventions is not just to ‘heal’, compensate, and honor victims’ memories, but it is ultimately to contribute to the transformation of the political subjectivity of victims in ways that enable them to engage as active citizens, whose capacity to think, speak, act, and revolt is acknowledged and respected.” (Madlingozi: 2010)

 

In reality, many victims are from communities historically poor and marginalized politically, socially and economically. As a direct result of this, they were subject to violence, disappearance, killings, rape, torture, injury and displacement from both sides in the conflict. Initially, the victims’ campaign was fragmented through different orientations and political manipulation and instrumentalisation by a range of interest groups (including NGOs and donors).

 

Victims were excluded from the formal process and the process was led in a top-down way that failed to represent thousands of victims and the notion of transitional justice was not established from the victims’ perspective. As a result the transitional justice process has excluded people, exactly as the state traditionally has. There was no ownership by or agency of victims, and therefore the process never became authentic and bottom up. Victims’ groups had no expertise or resources, and were subject to technical limitations with no access to the donors and government.

 

However they have continued to sustain their agenda and raised concerns. Activists for victims and victims’ groups included victims of both sides determined to promote a collective activism. But have failed to bring change to victims and had little impact on legislation. On the other hand, groups linked to political parties and NGOs have had access to a range of resources but have failed to represent victims.

 

  1. Victim-centred considerations for the commission (TRC/CIEDP) process

 

The gap between victims’ needs and what TJ is offering

 

Transitional justice work in Nepal today is quite rightly dominated by the massive violations that took place during the 10 year conflict, which even after 8 years are still far from being addressed. Despite various formal and informal initiatives, the situation of conflict victims has yet to be significantly transformed. There remains a significant gap between the transitional justice practiced and the transitional justice that victims seek.

 

The demands of victims are characterized by the following:

 

  1. a) Truth seeking

 

Finding truth about the incidents is important for majority victim of human rights violations from the conflict. The families of the disappeared still do not know the whereabouts of those disappeared. Families want to know the cause of violations, as do the rape victims, victims of torture, injured and disabled, and the displacement citizen. Truth is important for everyone, for their families and the society.

 

Truth-seeking has not been established in the Nepali practice; this is related to the acknowledgement, there is no official truth established. However, the government has provided monetary relief to the families of disappeared and killings from their record, but without official recognition and apology. The commissions may not uncover the whole truth, in the context of Nepal where the powerful conflict actors from both the Maoist and the State are still in power, who drives the process. This is related to the power relations, there is a big challenge to create a common narrative and understanding about the past abuses.

 

Several factors will determine what kind of truth will be established by the commissions and for whom. These factors include limitations in the commissions’ mandates, but also time and human resource constraints, political pressure and the way of collecting evidences and analysis. These factors may hinder the creation of a final report, which risks being very weak.. There should be clarification and guidelines as to which kinds of truth is to be investigated, documented and reported, for whom and by which means, in the current situation and process, there is a little trust that victims of human rights violations during the conflict may not get a satisfied answer or a full truth sought by victims. An interviewee focused on full truth as:

 

“We want to know the series of incident what happened after an illegal arrest of my father, after armed forces took him to the custody, so far we have no information, never receive satisfied answer from authority and the police never accepted the arrest, this is not only illegal detention, but also torture, enforced disappearance and killing. Who does provide us a truth? Together with facts, we want to return the human remains for our ritual process, truth is important to my family.” (Lamjung, July 2015, Son of the disappeared)

 

  1. b) Reparation

 

Reparation as a term was not fully understood and was rarely used by families at district level, but the concept was well received by some family activists. A victim leader said:

 

“Government provided monetary compensation four times to the family, but never acknowledged, through providing an official apology which is important for the families. Government cannot buy or sell the human value with money without any recognition. Reparation should address broader social, economic, cultural and psychological violations.” (A woman activist whose two family members were killed during the conflict, Kavre, August, 2015)

In order to guarantee non-recurrence of human rights abuses and to help prevent future violence, a transitional justice process needs to address the problems of damaged social relations and traumatization, as well as socio-economic needs (Servaes and Birtsch, 2008). Reparations, including financial assistance, rehabilitation, psychosocial support and public acknowledgement would help to address very practical needs of victims and provide a sense that there is a genuine willingness to provide victims with a means for survival.

 

“In Nepal, however, discussions regarding reparations appear to have been a secondary factor within the transitional justice debate and there is no comprehensive reparation policy and approach to consultation with victims and their networks.” (Victim’s leader in Kathmandu, August 2015)

 

Further clarification is also required as to how conflict victims will have access to reparations programs. Part of the mandate of the TRC and Disappearances Commissions is to make recommendations regarding reparations. So there must be a clear policy to provide fair reparation to every victim independent of their engagement with the Commissions – and defining reparation as a right of victims, not as assistance, charity or facility to the victims. This policy must reflect the victims’ priorities and needs. It should also be addressed in a comprehensive manner. This should follow not only individual reparation, but also focus a symbolic and community level.

 

In order to genuinely acknowledge the root causes of past human rights abuses, a reparations policy should also address broader social, economic and cultural rights violations of victims of structural violence that occurred beyond the armed conflict and hence register recipients according to caste, ethnicity and economic status (ICTJ, 2012).

 

An Interim Relief Program (IRP) has been implemented to offer conflict victims a number of benefits including cash payments; scholarships to children of persons killed, forcibly disappeared or seriously disabled during the conflict; reimbursement of medical expenses and treatment for specified disabilities or injury and at government hospitals; skill development training for eligible conflict victims; and compensation for lost and damaged property (ICTJ 2012). However, the IRP has been an interim measure and has not managed to address the needs of all victims. The experience and shortcomings of the IRP have been analyzed and well documented (ICTJ 2012; IHRC, 2013). In order to address the social and economic needs of victims, a comprehensive reparations policy needs to be implemented (see above) and the Government’s and donor agencies’ development policies should be linked to transitional justice (Robins, 2010).

 

In addition to monetary provisions, the Government also needs to create a legal status for conflict victims, as a way of acknowledging and addressing the hidden costs of past violations. In Argentina, for example, ‘forcibly disappeared’ was introduced as a legal category equivalent to a death certificate. This has made it easier for victims’ families to deal with civil matters such as inheritance and land issues without being forced to declare their lost family member as dead (Hayner, 2001).

 

  1. c) Psychosocial issues

 

Psychosocial support services for conflict victims continue to be limited. In 2013, the MoPR launched psychosocial counselling and support services for conflict affected persons in 10 selected districts. Psychosocial guidelines have been drafted by the Ministry and endorsed by the cabinet in 2013 without consultation. However, psychologists have questioned the guidelines’ relevance, as they were not drafted in consultation with experts and conflict victims. Victims and their networks also raised questions on the process where they have no feeling of ownership and inclusion in the process.

 

Short and long-term psychosocial support also needs to be considered in relation to the anticipated truth-seeking mechanisms. The retelling of stories, whilst having a healing effect for some victims, may also have negative psychosocial impacts for victims and their relatives. Psychosocial aspects should be considered at all stages of the transitional justice processes. Psychosocial expertise, which was apparently not consulted as part of the commission act drafting process, needs to be included in the commissions and statement taking teams so as to ensure that victims are provided with the appropriate environment to re-tell their stories.

 

This also demands clear coordination procedures. For example, there is not a clear coordination measure within two commissions to share information and the evidences collected. For example, there are many families whose relatives were disappeared, killed, tortured, disabled, raped and displaced during the conflict. If there is no coordination, the families risk having to face two commissions to tell the same stories.

 

A longer-term psychosocial support mechanism will be required to provide, when needed, assistance and counselling outside of and beyond the actual TRC/CIEDP hearing stages. There is also a need to train and to support additional counsellors so as to be able to deal with the number of clients that may potentially increase as the transitional justice process progresses.

 

  1. d) Security of victims and witnesses

 

Victims and witness protection mechanisms in the commission process are largely absent. Mainly, the level of trust is important. In the absence of trustworthy measures, victims of violence from both sides cannot freely speak out and give a quality testimony. The commissions should develop a policy of protection measures such as ensuring victim and witness a guarantee of security, protection of evidences and safe archiving.

 

A stronger emphasis needs to be placed on the protection of victims and witnesses as part of the transitional justice process. Specific mechanisms must be put in place to ensure that this happens.

 

 

 

  1. e) Specific needs of women

 

As stated in the act of TRC/CIEDP, the Commission shall make special arrangements to create a conducive environment for victims of sexual violence to file complaints, but at the same time does not seem to ensure a sufficient number of female commissioners and a special procedure. In order to ensure such an environment and to encourage women to come forward to share information about sexual violence and rape, the Commission should conduct special hearings with only female commissioners and employ female statement takers in the process. Specifically for disappearances, most of the surviving family members are women, largely the wives of the disappeared: the commission approach is silent on dealing with their psychological and emotional needs..

 

  1. f) Victims’ consultation in policy and implementation

 

Consultation has a huge potential role in shaping discourse and framing policy, yet participatory consultation with victims’ families and their associations has yet to take place. One of the major components of a victim-centred approach to transitional justice is consultation with victims at a wider level.

 

“Victims and their representatives have little or no access to policy formation, which is controlled by the top-level actors. A clear example is the bill drafts and selection of the TRC and Disappearance commissions. The bills were drafted in Kathmandu, decisions were made by major political parties and not consulted with victims. The policy process not only excluded victims’ engagement but also marginalized their voice.” (Victims’ leader, Dang, April, 2015)

 

It is important to include victims throughout – from the policy draft to implementation process – so as to increase their role and representation, and empower victims to contribute and take ownership of the transitional justice process. So the inclusive policy approach could be the entry point for victims’ participation and their engagement in the process that can lead towards a peaceful future i.e. constructing a transitional justice from below from a family level that directly addresses their immediate everyday needs.

 

10.          Ways forward for victims in Nepal

 

Nepal’s transitional justice process continues to be led from Kathmandu with a reluctant Government having other priorities, cajoled by national and international NGOs who have little contact with ordinary victims in rural areas. The agenda of civil society is one that comes from a global human rights discourse, emphasising criminal accountability over all other approaches, despite the demonstrated breadth of priorities and needs of victims. Reparations have at last become an issue for NGOs but are only meaningful if they arise from an engagement with victims: the harms of violations determine what victims need in terms of repair. Victims’ groups and their members in districts represent the most effective way for victims to play a role in a process that they should be at the centre of, in articulating those harms.

 

Nepal’s conflict was the product of a society built upon the codified exclusion of a majority of its people. Such social exclusion militates against the engagement of a large fraction in many areas of society, on the basis of caste, ethnicity and gender, and human rights practice is no exception to this. Victims of violations are most likely to come from marginalised communities, such as from indigenous or Madeshi communities, or from the lower castes. As a result, the rights agenda is constrained to the civil and political, with such agencies essentially ignoring the issues of social, economic and cultural rights: these are the issues that victims also prioritise and which drove the social exclusion that fuelled Nepal’s history of conflict.

 

To advance the views of the voiceless victims of the conflict, and to address the social exclusion that continues to violate the rights of a majority, the priority should be to mobilise victims to represent themselves, supporting grass-roots victims’ groups in districts and rural villages.

 

The challenge for all of those trying to advance a victim centred-transitional justice agenda in Nepal is to ensure that advocacy is rooted in the experience of those who most need truth, justice and reparation. This represents both a great opportunity and a challenge for those who seek to ensure that Nepal has a transitional justice process that is representative and transformative of the lives of victims of the conflict.

 

  1. Recommendations

 

Recommendations to the Political Parties and the Government

 

  • Respect past agreements including CPA, interim constitution, Implement the June 1st, 2007 Supreme Court directive, and the Supreme Court verdict of January 2nd, 2014 and 26th February 2015. Political parties must address the nation’s legacy of the past for a better future; the process must be responsible, accountable and transparent to the Nepali people.
  • Respect and implement the recommendations made by the National Human Rights Commission; develop a comprehensive reparation policy and victims’ support fund.
  • Consult as broadly as possible among victims, beyond easily accessible urban activists, to ensure that needs of typical victims, who are overwhelmingly poor and rural, are understood.
  • Recognise and use the Conflict Victims Common Platform and their members as a partner to help the government achieve the goals of transitional justice mechanisms and meaningful reconciliation to sustain local peace. There should be a formal cooperation mechanism and victim support programme between the victims’ platform and the government.
  • Ensure that the Government recognizes that transitional justice is a process that is broader than (goes beyond) the work by the Truth and Reconciliation Commission (TRC) and the Commission on Disappeared Persons (CIEDP); the process requires coordination from a number of Government actors for its successful realization.
  • Address the most urgent needs of victims of human rights violation by undertaking an immediate reparations programme with economic support to victims of the conflict, through the fair and full package of interim relief, independent of any other transitional justice mechanisms.
  • As part of the reparations programme, the Government should engage with affected communities, district authorities and agencies having appropriate capacities in a program of psychosocial assessment and intervention with families of the victims. These should build on the capacities of families and communities to address their own needs.
  • Ensure a process of reconciliation at community level, by engaging with conflict affected communities, district authorities, victims’ organizations and agencies having appropriate capacities in a program of community reconciliation, potentially as part of the Commission process.

 

 

Recommendation to the TRC and Disappearance Commissions

 

Pre-requisites for critical engagement of victims with the Commission process:

 

  • Assurance from both commissions that they will respect the Supreme Court verdicts and internationally established principles of transitional justice;
  • Assurances from the Commissions that they will ensure a victim centred approach in their objectives, operational work, including the plan of action, roadmap, and strategies;
  • A commitment that the Commissions will engage with various institutions, specifically with the NHRC, security forces, political parties and other agencies;
  • The Commissions must share their priorities plans, procedures (time-line, resources, content) with conflict victims, including with victims who are living far from Kathmandu;
  • The Commissions must consult the victims when they develop their regulations and rules, guidelines, and operational procedures;
  • The victims should have access to the rules and procedures of the Commissions (structure, victim and witness protection, outreach policy, protection of data, protection evidence and archiving, publication of final report) once developed;
  • The Commissions should seek to create an institutional and physical environment that ensures that all victims – including children, persons with disabilities, women, and victims of sexual violence – are able to express themselves securely and appropriately before the Commissions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

Hayner, P.B. (2001) Unspeakable Truths: Confronting State Terror and Atrocities, London: Routledge.

 

ICTJ and AF (2008) Nepali Voices: Perceptions on Truth, Justice, Reconciliation, Reparations and the Transitional Process in Nepal.

 

ICTJ (2012) Relief, Reparations, and the Root Causes of Conflict in Nepal

 

ICTJ (2013) Beyond Belief: Addressing the Rights and Needs of Nepal’s Wives of the Disappeared

 

ICTJ (2014) Reparations report (correct title on the internet…)

 

IHRC (2013) Assistance Overdue: Ongoing Needs of Civilian Victims of Nepal’s Armed Conflict

 

Robins, S. (2010) Families of the Missing: A Test for Contemporary Approaches to Transitional Justice, New York: Routledge

 

Roht-Arriaza, N. (2006) Introduction, in Roht-Arriaza, N. and Mariezcurrena, J. (2006) Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, Cambridge: University Press

 

Selim, Y. (2014) The Opportunities and Challenges of Participation in Transitional Justice: Examples from Nepal, in Journal of International Development

 

Kieron McEvoy and Lorna McGregor, ‘Transitional justice from below: An agenda for research, policy and praxis’, in Transitional justice from below: Grassroots activism and the struggle for change, ed. Kevin McEvoy and Lorna McGregor (Oxford: Hart, 2008).

 

Madlingozi, Tshepo (2010), On Transitional Justice Entrepreneurs and the Production of Victims. Journal of Human Rights Practice, 2 (2): 208-228.

 

Robins Simon, The Families of Missing in Nepal: A study of their Needs, ICRC, Kathmandu Nepal, 2009.

 

Robins, S. (2012) ‘Constructing meaning from disappearance: Local memorialization in post-conflict Nepal‘, Conference paper presented at ISA 2012, San Diego, 1-3 April 2012.

 

Robins, S. (2011) Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Post-conflict Nepal, The International Journal of Transitional Justice, 5(1): 75–98.

 

Robins, S and Ram Kumar Bhandari (2012), ‘From victims to actors: Mobilising victims to drive transitional justice process. A participatory action research project with families of the disappeared in Nepal’, NEFAD: Kathmandu.

 

[1] Bhandari is Founder President of National Network of Families of the Disappeared and Missing NEFAD and General Secretary of the Conflict Victims Common Platform (CVCP), can be reached at rambhandari3000@gmail.com; +977 984 609 9948

[2]INSEC, 2007, (http://www.inseconline.org/YB_Book.php).

[3]Relief and Rehabilitation Unit, MoPR, 2010.

[4] Ibid.

[5]ICRC (International Committee of the Red Cross), 2012.

[6]CPA 2006, 5.2.4. Both sides agree to constitute a National Peace and Rehabilitation Commission and carry out works through it to normalise the adverse situation arising as a result of the armed conflict, maintain peace in the society and run relief and rehabilitation works for the people victimised and displaced as a result of the conflict.

 

[7]5.2.5. Both sides agree to set up a High-level Truth and Reconciliation Commission as per the mutual consensus in order to probe about those involved in serious violation of human rights and crime against humanity in course of the armed conflict and develop an atmosphere for reconciliation in the society.

[8]5.2.3. Both sides also agree to make public within 60 days of signing of the agreement the real name, caste and address of the people made ‘disappeared’ or killed during the conflict and also inform the family members about it.