Disappeared Truth - Anger and Frustration, International Obligation
For the families that lost their loved ones to enforced disappearance during Nepal's armed conflict, the long struggle for justice continues. Hundreds of families still wait for answers and live with ambiguity on a daily basis, having received no recognition from the authorities. The political attitude and the role of the state have not shifted, marginalizing the demands of families of the disappeared. The terrible effect of the disappearance within families and society has greatly affected their daily lives and social process in terms of livelihood and socialization. The main Maoist leaders and ideologues have dissolved their party, forgotten their past and sold out those who fought for them. These leaders have joined a new ruling elite, but they have failed to address the historical question of truth and justice for many.
During the transition period following the Comprehensive Peace Agreement (CPA), the political leadership and the state they led failed to answer questions of justice and accountability for past crimes. The political elites have fully instrumentalized the victims for their political benefit, compromised international legal principles for amnesty and failed to change the institutions--such as the army and the police--that were heavily involved in human rights violations during the conflict. As a result, these institutions still contain alleged perpetrators who have never respected victims of violations and continue to threaten justice activists.
Anger and frustration
A Conflict Victim Common Platform (CVCP) member said, "Various actors in transitional justice do not want to solve our problems and do not let the victims drive the process as primary rights holders, rather they look at us as innocent poor victims and often impose their ideas on us. This process has not only been derailed by the political actors but also by the donors with their terms and their brokers to use victims as project components, there is no fair process and constructive dialogue putting victims at the centre."
The CVCP recently organized a dozen consultations across the country on the current amendment draft of the proposed Transitional Justice Act (TJA). Hundreds of family activists showed their anger and frustration and suggested building a local movement and solution-based dialogue, emphasizing the need to spell out the role of spoilers who used victims to destroy the process and evidence of crimes. Participants expressed their disappointment at the existing commissions as being passive and unrepresentative bodies. Victims strongly argued that symbolic prosecution of the perpetrators was not acceptable, as truth and reparative needs were not a substitute for government accountability. Members also questioned the accountability of donors who invested big resources but delivered little for victims.
The government should evaluate its policy and position towards the agenda of the CPA to address victims' agenda of truth, justice, reparation, and guarantees of non-repetition to close this contentious chapter in our recent past. The victims' community welcomed the proposed amendment bill as a positive step, despite the many flaws in the draft. Without creating strong dialogue at the local level, the Kathmandu draft may fail again to win the trust of victims and wider society. The government must engage in effective communication and partnership with victims through their representatives such as the CVCP. Justice for victims is not only about political and legal steps but social, economic, cultural and psychological dynamics that are important to address their practical concerns and satisfy their daily needs.
If the government is really serious about a victim-friendly discussion to prioritize their key concerns, it must create a structure to support the livelihood, employment, health, and education interventions. There are many possibilities for linking them with the new local governments. There are many ways to develop new partnerships around issues such as local memorialization and income generation.
The TJA amendment draft, written by politically affiliated lawyers who ignored social, economic, psychological, cultural and historical dynamics of justice, must include victims' concerns through a national consultation to develop it as a common national policy document. The draft committee consulted high-level officials of the army and police and political heads of the ruling and opposition parties, but it never talked to the victims, civil society, National Human Rights Commission and existing transitional justice bodies.
To explore all solutions, the authorities must go to the local level and to individual If the government is really serious about a victim-friendly discussion to prioritize their key concerns, it must create a structure to support the livelihood, employment, health and education interventions, families and their communities. The solution lies at the local level through the localization of justice based on victims' needs and priorities to address humanitarian affairs. The amendment process may lead to a locally-led solution if the government really wishes to work with victims through meaningful consultations to deliver effective results for a sustainable future. This is the right time to correct legal flaws through Parliament and provide support mechanisms by developing the partnership with victims' groups. Parliament as a representative body must openly discuss the issue and represent citizens and support wider consultations to reflect their needs in policy and practice.
The recently introduced penal code has criminalized disappearance as a crime. But the provision is not retrospective and can-not address conflict-related enforced disappearances. This must be changed through the current TJA to widely define and criminalize enforced disappearance as a continuous crime. These provisions must comply with Nepal's international obligations and the directives of the Supreme Court. Nepal must also, without further delay, become a party to the International Convention for the Protection of All Persons from Enforced Disappearance. The perpetrators of forced disappearances in our recent past should not be spared prosecution. The government should not protect these criminals in its agencies and security institutions, because this will create injustice and lead to a renewal of violent conflict in the future. On this day against enforced disappearance, let's remember all the disappeared. Let's commemorate the day for the right to know, dignity and real justice for all.
Author: RAM KUMAR BHANDARI
Bhandari is founder president of the National Network of Families of Disappeared and Missing (NEFAD) and co-founder of the Conflict Victim Common Platform.
(This Article also published on The Kathmandu Post)