Insights and Analysis
Debating Amnesty and Reconciliation in Nepal
June 12, 2013
The last several weeks have witnessed the unfolding of an unfortunate chain of events in Nepal with regard to a Truth and Reconciliation Commission (TRC). The commitment to form a TRC was part of the 2006 Comprehensive Peace Accord, which ended a decade-long conflict between State and Maoist forces. After this long wait, the so-called TRC ordinance was earlier this year forwarded to President Ram Baran Yadav who signed it on March 14 amid a great deal of controversy.
Most problematic in the ordinance is a legal provision allowing the Commission to recommend amnesty for perpetrators of conflict-era human rights violations. In turn, the donor community has expressed its reluctance to support a TRC that does not meet international standards. Nepali conflict victims and human right activists have also challenged the TRC ordinance on similar grounds in the Supreme Court. Responding to the petitions, as reported in the Kathmandu Post, Nepal’s Interim Electoral Government Chairman (and Chief Justice) stressed that amnesty will not be recommended without perpetrators fully confessing conflict-era violations and establishing a basis for pardon. Further, despite its critical importance, the ordinance was finalized and approved by only four of Nepal’s political parties, with even officials of the National Human Right Commission claiming to have been denied access to the ordinance’s final version. These and the opinions of Nepali thought leaders portray an understanding of the fundamental purpose of a TRC that is severely circumscribed by political considerations alone.
One is left asking: How has a reconciliation-oriented mechanism managed, even prior to its inception, to cause such deep disagreements, frustrations, and tensions in society? Is it because something fundamental is missing in the understanding and discussion of Nepal’s transition through truth and reconciliation? As the amnesty debate continues to heat up, broader questions regarding Nepal’s transitional processes need to be asked.
Could a TRC alone enable truths to emerge? A TRC provides the opportunity to establish a wider form of truth, one that emerges from a broad engagement of a society trying to better understand its past and reshape its future. South Africa’s TRC called this a societal or dialogue truth. However, the mere establishment of a TRC is unlikely to foster, by itself, an environment conducive for such truths to emerge. First, the creation of a safe and open space for stories to be told and the installment of strong social-support mechanisms for those who shared their stories, a necessary part of this process, were yet to be discussed. Second, deepening frustration among conflict victims regarding their limited participation in the formation processes of the current ordinance might further shape and reduce their future engagement with the TRC. Furthermore, as conflict victims object to amnesty, they are stating that the truth produced by TRC cannot replace the different and additional truth established in court, one of individual’s legal responsibilities to conflict-era crimes.
Could a TRC alone foster reconciliation? Nepal’s TRC drafts tended to focus on the types of reconciliation available within the immediate framework of the commission – namely, inter-personal reconciliation processes between victims and perpetrators. To this end, the different versions of the TRC bill were establishing mediation procedures to bring together victim and perpetrator. But this reconciliatory role might be undermined by language in the recent ordinance, as there are concerns that victims’ consent to these processes is not seen to be mandatory.
Alongside these interpersonal aspects, reconciliation itself is a far wider issue, and entails addressing communal and societal aspects of the aftermath of the conflict; not only the personal aspects of victims and perpetrators. Beyond inter-personal mediation processes between victims and perpetrators within the walls of TRC, reconciliation might also flourish in the rural hinterlands, where once marginalized groups now gain access to livelihood opportunities. It might also result when policy reform addresses structural injustices. Reconciliation happens when the root causes of conflict are addressed and when a different future seems possible.
Though TRCs are aimed at fostering reconciliation, they also conceal an inherent risk of becoming a source of additional mistrust and disagreement. Therefore, Nepal’s envisaged TRC will have to constantly struggle to transcend existing inequalities and injustices and ensure access, participation, and voice to diverse individuals and communities. While dialogue processes regarding the TRC ordinance have been conducted in the past, conflict victims and human rights organizations were not included in the formation processes of the latest version of the ordinance, which is now signed into effect by the president.
Furthermore, even if participation in Nepal’s TRC would be broadened, successful transition in Nepal cannot be achieved by merely establishing a TRC; this might be a necessary step towards truth and reconciliation, but it is certainly not a sufficient one. Truth, for example, would oblige strong psychosocial support mechanisms for conflict; reconciliation will require policy and land reforms to address the inequalities that drove the conflict. An effective TRC in Nepal would require additional bodies working alongside it, from prosecutions and accountability mechanisms to reparations and reform programs.
Transition processes occur at and across various layers of society, and thus require a holistic approach that deploys a wide array of mechanisms. The question is not only whether amnesties could be granted if or when the victim is willing, but also how public participation can be fostered in the process, how Nepal’s legal system can be strengthened for effective conflict-era prosecutions, how the claims of victims regarding hundreds of conflict-era proceedings (which have been withdrawn) can be addressed, and how to ensure legal and judicial impartiality. In order to ensure the transition to a durable peace in Nepal, these broader questions must be brought to the table.
George Varughese is The Asia Foundation’s country representative in Nepal and Tamar Luster is a graduate intern with the Foundation there. They can be reached at [email protected] and [email protected], respectively. The views and opinions expressed here are those of the authors and not those of The Asia Foundation.
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Well versed piece!
I observe that we do not have transitional justice environment in Nepal where perpetrators lead the transition, exclude victims-survivors in the process and few elites narrowly make decisions about the lives of others. Victims community have little trust even with Nepal’s legal mechanism, declining trust towards political leadership and they do not feel ‘ownership’ and ‘agency’ with ongoing process. Without wider participation, representation and empowerment of victims themselves in the transitional justice process, I do not see the possibility of reconciliation and harmony in our communities, rather it may increase anger, frustration, revenge and violations in future. Ensuring victim agency demands the creation of process on the basis of what the conflict-affected people seek in response to their needs of transition.