Ram Bhandari, Gita Rasaili and Phadindra Luitel
We are members of the Conflict Victim National Alliance for Justice. Our Alliance represents victims of the State and the Maoists. We want to continue on the path that was becoming clearer before the new ‘high-level mechanism’ that appeared suddenly in November 2018. We do not want to waste time and energy on a diversion that causes division.
We were on a good track! We were united in our opposition to the transitional justice (TJ) amendment that was presented to us in June 2018. Earlier, in April 2018, the leaders behind that amendment even wanted us to avoid speaking about war crimes and crimes against humanity. We conflict victims still have a mountain to climb before we see justice on the horizon.
We support the call for unity, but not if it means getting lost. For this, donors need to get behind us, not in front of us. Here are a few points in advance of our dialogue, to avoid getting lost.
First, this is not a conflict between law and politics. The fact is that the law has always been part of politics, just like the Constitution was the result of a political process. We are suspicious now about the politics of the high-level mechanism and what it means for the rights of victims.
The agents of ‘high-level mechanism’ say that the 23-point charter “fueled national dialogue”. We do not see this national dialogue. We do not even see the ‘high-level mechanism’. What is it? Where is it? How is it different from the usual politics of Nepal’s commissions of inquiry (that recently buried the Lal Commission report and, before that, the Mallik and the Rayamajhi commissions after the 1990 and 2006 Jana Andolans)?
And what about the 23 points of the so-called Charter? Wasn’t our agenda much simpler and clearer before this? We had three main points: meaningful participation by conflict victims, effective commissions, and compliance with national and international law. Did we lack 20 more points?
Second, the agents of charter say that TJ has been imposed legalistically up until now in Nepal as a Western principle. Really? We have no trouble demanding, without Western permission, why and how a father was disappeared; how a sister was raped, tortured and killed; how a husband and father was abducted and executed in cold blood; or how groups of innocents were massacred arbitrarily. We easily ask, as Nepalis, about the truth of the underlying causes of the conflict and how TJ can also address these structural realities. We want to understand and agree, as Nepalis, how past and present impunity are connected. We need no encouragement from the West to ask how we can repair the harm inflicted by violence. We need no convincing from the West to believe that any nation with a future, including Nepal, must decide that certain crimes have no political justification. No Western advice is needed for us very naturally to want to help our children and grandchildren to avoid the horrors of what we and our loved ones have suffered and continue to suffer.
There are two main rights and obligations that the politics of TJ must not leave in the rubble of Nepali politics:
Victims of human rights violations have the right to a remedy that:
puts an end to the violation if it is continuing (like enforced disappearances); investigates and declares the truth about what happened and its causes; provides measures to repair the harms; and takes steps to avoid that the same harms happen again. This includes the institutions that maintain impunity.
Second, those who committed serious crimes during the conflict need to be dealt with seriously by the State. That means that we need to talk about how to ensure proper investigations (including protection of evidence and of victims and witnesses); the criteria for launching prosecutions that take into account the vast number of cases; sentencing guidelines that send the right message to society about crimes while taking into account other ‘transitional’ factors.
These two points – providing remedies and addressing crime – are easy to find in Nepal’s Constitution (including Nepal’s international treaty obligations) and in the jurisprudence of Nepal’s Supreme Court. We must ensure that these rights do not fall through the cracks of a weak process.
The TJ process will fail unless we have TJ Commissioners who have independence, impartiality and access to competent technical people; conflict victims who are able to participate in meaningful ways (before finished projects are thrust in front of them!); Human Rights Defenders who do not allow party politics to interfere with victim rights and State obligations; and a State that demonstrates a genuine will to comply with Nepal’s Constitution (including the obligation to comply with international treaties and with the decisions of Nepal’s Supreme Court).
The mountain we need to climb is higher than our Sagarmatha. We need to unite to get to the top. We will know we have reached the Summit when we agree on the ‘why’ and the ‘how’ of TJ. The ‘how’ part of TJ will be transitional, because it relates to massive numbers of cases connected by the conflict. The ‘why’ part is not transitional. It is about ‘justice’, about making people whole again (or for the first time). The ‘why’ part tells us that Namita and Sunita Bhandari, MainaSunwar, Reena,RupaChaudhary, Guru Luiteland Nirmala Pant, are connected by their dignity.
Sadly, they are also connected by impunity (meaning that violations of their dignity can occur without any remedy). The impunity that the perpetrators of conflict crimes enjoy is only possible because the institutions of impunity are maintained. These same institutions of impunity guarantee that more cases like Nirmala Pant will come, along with a sense of insecurity and lack of trust in democracy and justice. Poverty and exclusion will find no remedy under these conditions.
So, let’s meet and talk about all of this. If our newfound allies can help, that is great. In this politics, as everyone will agree – our solidarity is everything.
Bhandari is an advisor, Rasaili is President and Luitel is General Secretary of Conflict Victim National Alliance.