Case Studies

NEPAL

Historical Background

From 1996 to 2006, Nepal was engulfed by a civil war between government forces and Maoist fighters, affecting almost every region.

Conflict-related killings were reported in all but two of Nepal’s 75 administrative districts. More than 13,000 people, including combatants and civilians, were killed. Approximately 1,300 were reported missing. The internally displaced were estimated to number between 100,000–200,000. Tens of thousands fled across the border as refugees.

Peace talks began in 2005 amid ongoing violence. The two main parties to the talks were Nepal’s government, which included the conservative Congress Party and a Marxist-Leninist Communist Party, and the Maoist Communist Party of Nepal (CPN-M), which led the Maoist armed struggle. The peace process was accelerated by two successive ‘people power’ protests that sought to bring down a repressive monarchy. The talks included the fundamental issues at the root of the armed conflict, including access to land, an end to class and ethnic discrimination, and the dissolution of the feudal, monarchical state.

On November 8, 2006, following a summit meeting, Nepal’s Seven-Party Alliance and the Maoist Communist Party of Nepal reached a bilateral agreement—the first to mention a truth and reconciliation commission and a process for determining the fate of the disappeared.

 

Case Studies

NEPAL

Historical Background

 

The summit agreement was followed shortly on November 21, 2006, by the signing of the Comprehensive Peace Accord (CPA) between the government and Maoists. The agreement declared “the beginning of a new chapter of peaceful collaboration.” Both parties committed to establish a Truth and Reconciliation Commission (TRC) and agreed to disclose the names and fates of the persons forcibly disappeared during the conflict.

The provisions of the summit agreement and Comprehensive Peace Accord relating to truth seeking were minimal, although a 60 day period was agreed on in which to disclose the fate of the disappeared. All of the procedural and substantive details regarding truth seeking, including concrete objectives, were left to be decided by future policy makers.

In 2007, The Interim Constitution of Nepal 2063 came into effect, but did little to resolve the questions left unanswered by the Comprehensive Peace Accord or summit agreement.

In mid-2007, the Ministry of Peace and Reconciliation circulated a first draft of a Truth and Reconciliation Commission Bill that established the commission’s period of inquiry as from February 1996 to November 2006. The bill also gave the commission power to recommend amnesties for perpetrators, except those implicated in murder, torture, or rape. It proposed a ‘reconciliation’ process in which individual perpetrators could participate but linked reparations for survivors and families of victims of human rights violations close to conditional on their participation in public reconciliation meetings. The bill’s provisions on amnesty and the ‘reconciliation’ process encountered resistance from both Kathman-du-based civil society groups and victims’ organizations, whose members are mostly from rural districts. Subsequent versions of these proposals then included a separate commission to investigate forced disappearances. In the meantime, the Maoists lost in elections and coalitions of non-Maoist Communist parties and the National Congress party formed successive governments.

In August 2012, the president signed an ordinance establishing a Commission on the Investigation of the Disappeared, Truth and Reconciliation, which was to merge the functions of both the Truth and Reconciliation Commission and the commission for investigating disappearances. The ordinance was challenged in Nepal’s Supreme Court, which then declared unconstitutional the amnesty clause of the ordinance and directed the government to amend the ordinance to make it consistent with Nepal’s constitution.

 

Nepal’s truth-seeking commissions: the TRC and the CIEDP

In 2014, Nepal’s parliament, the Constituent Assembly (CA), enacted a law creating a five-person Truth and Reconciliation Commission and a separate five-person Commission of Inquiry on Enforced Disappeared Persons (CIEDP).

Despite victims’ and activists’ concerns over problematic provisions in the act and a pending Supreme Court case involving 234 victims challenging its amnesty clause, among other issues, the government expedited the formation of the commissions. In February 2015, days after the TRC and CIEDP were established, the Supreme Court found the act’s amnesty provision unconstitutional.

The government has sought clarification about the ruling from the court in relation to pending criminal investigations involving conflict-related crimes. In the meantime, some victims’ groups and civil society organizations have taken ambivalent positions on the commissions. They see the commissions as opportunities for truth telling and to know the whereabouts of disappeared family members, but are also distrustful over the possibility that the commissions will be used to shield perpetrators from criminal accountability.

 

Challenges

 

The truth about the Root Causes of Nepal’s Conflict

The peace process in Nepal was, in many respects, the continuation of what the Maoist-led armed struggle was about: the process sought agreement on how to end poverty, inequitable access to and deeply entrenched social and economic inequality based on class, caste, ethnic, and gender discrimination. But while the comprehensive peace agreement does speak of agrarian reform, the fulfillment of social and economic rights for the marginalized, an end to caste and class discrimination, the dissolution of a feudal, monarchic state and the equitable distribution of political power, it left too much room for ambivalence and betrayal in its implementation. As a result, all of the proposals to create a truth commission do not specify that the commission seek the truth about why the armed conflict began in the first place; the law creating the TRC and the CIEDP only refers to the ‘root causes’ of the conflict once, in a catch-all clause in which all the other issues that the TRC might look into are found.

Fear of Criminal Accountability

The rationale for establishing two separate commissions can be traced to what the two sides of the armed conflict wanted to emphasize and what their respective constituencies expect. For the non-Maoist parties, including those linked to elite political families, bureaucrats, and the military, the focus is on avoiding criminal prosecution and emphasizing the ambiguous notion of victims ‘of conflict’ rather than victims of violations committed by state agents. For the Maoists, disappearances are the violation that targeted Maoist sympathizers specifically. There is an overlap in that both sides would not want prosecutions for high-level leaders who may be implicated based on their responsibility over their respective combatants or because crimes weren’t connected to their political objectives.

In 2009, the then-special representative of the United Nations secretary general in Nepal, Ian Martin, suggested that reluctance from political parties and armies to risk criminal liability severely obstructed truth-seeking processes, particularly the strong political will needed to allow these processes to materialize.

The misconception that truth commissions serve as a vehicle for avoiding accountability rather than addressing the past in a manner consistent with internationally recognized rights has proven highly detrimental.

Weak Institutional Structures

Since 2008, Nepal’s constituent assemblies have weathered a series of Supreme Court dissolution orders. The country has experienced sustained periods of political polarizations and serious violent clashes. Corruption, cronyism, and ethnic/regional politics have also obstructed general governmental functions. Significant veto players, such as the Nepalese Army, have also at times impeded democratic processes.

In this fluid context, the legislation necessary to establish an official truth-seeking mechanism or commission on the disappeared received minimal attention. Many drafts that managed to come before policy makers included language detrimental to the rights of victims and were, thus, defeated by action from civil society and victims’ groups.

In 2011, the UN Office of the High Commissioner of Human Rights attempted to organize consultations to build consensus on a Truth and Reconciliation Commission bill compliant with international law and standards. The consultations did produce concrete alternative proposals, but once the bills emerged from the Constituent Assembly, they again included generous amnesty provisions for perpetrators of serious human rights violations. The process stalled again in the face of public opposition.

In 2014, the Commission on Investigation into Disappeared Persons, Truth and Reconciliation Act (CoID-TR Act) was enacted. However, the two commissions it created – the Truth and Reconciliation Commission and the Commission of Inquiry on Disappearances – were established without consulting victims or civil society. In 2015, after a suit brought by victims, the Supreme Court annulled the CoIDTR Act's amnesty provisions. Several missteps in the establishment of its Truth and Reconciliation Commission (TRC) and Commission of Inquiry on Disappearances (CoID), notably the lack of civil society involvement in the selection of commissioners, has left victims and activists distrustful of the process.

 

Successes?

“In Nepal, the state hasn’t begun to seek the truth. Even now, citizens, especially conflict victims, have no real freedom of speech… Because there’s no victim protection or relevant legislation, victims don’t feel able to speak openly about their problems. ” — Prativa Khanal, Graduate Student, Kathmandu School of Law, and Legal Officer, Transitional Justice Resource Centre

Even without these commissions, both victims’ groups and human rights advocates have succeeded in framing transitional justice as less about reconciliation than about accountability. By challenging the TRC ordinance and law in court, both groups have demonstrated that a process that deliberately excludes their views and is meant to legalize impunity can be defeated, even if not decisively, then at least enough to force the government to recognize its human rights obligations.

Victims’ families in particular have also shown that unity across ideological and political party lines can be achieved and can produce better outcomes. Families of the disappeared, for example, were instrumental in ensuring that even without these two commissions, cases of disappearances before the National Human Rights Commission would continue to be investigated. The most active victims’ groups have also formed their own network that, while still not completely disconnected from political party links, can operate autonomously from both partisan agendas and the legalistic approaches of human rights organizations. This may allow for critical engagement with the two commissions by victims, without abandoning their reservations over the potential for entrenching impunity through the TRC in particular.

Lesssons Learned

The lessons from Nepal’s experience with setting up truth commissions should not only be learned by Nepali stakeholders but by non-Nepali institutions, including Western governments, donors and international NGOs that conflate transitional justice with a set of prescriptions that fail to take into account national political alignments and a far longer history of injustices than the violence of the 10-year armed conflict. On one hand, Nepal’s political elite have underestimated the resilience and depth of grievances among victims’ families. The moral strength and activism of victims’ groups has successfully undermined the partisan, politically-driven approach to designing truth commissions in Nepal. It has also compelled Kathmandu-based human rights advocates to acknowledge that truth seeking and reparations are just as important as individual criminal accountability.

Lack of Unified Civil Society Strategy

While Kathmandu-based civil society organizations, particularly human rights groups led by lawyers and victims’ groups led by families and individual victims, have overlapping agendas, their interests can also diverge.

Families of the disappeared want to know the whereabouts of their missing relatives and are willing to engage with the CIEDP. Some victims, including those who may not belong to victims’ groups, will likely come forward to the TRC because they have no other space or opportunity for truth telling, have no resources to go to court for remedies, or assume that reparations are more likely obtained by engaging with these commissions.

On the other hand, human rights advocates are focused on overcoming impunity – particularly for indviduals - and see the commissions as more likely to entrench it. As a result, they are less focused on truth-seeking or reparations and are more interested in using courts and litigation.

The myopic view of Nepal’s political parties does not help; these parties often instrumentalize victims’ demands for justice, see human rights groups as spoilers, and frame transitional justice as mainly about reconciliation, rather than accountability.