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ictj program report

For ten years, fghting between the government of Nepal and Maoist rebels brought fear and terror into the daily lives of many Nepalese. During the
armed confict, more than 13,000 people were killed and 1,300 forcibly disappeared. Though the war formally ended in 2006, the countrys recovery has
been stagnated by the governments failure to uphold the rights of victims of confict-related human rights violations, including unanswered questions about
the whereabouts of more than one thousand people. In May 2014, the government passed an act to create two commissions to establish the truth about
the past and determine the fate of the disappeared. The act however retains a number of problematic provisions, including those which allow amnesty to
be granted to perpetrators of serious crimes. The same provisions were ruled to be illegal by Nepals Supreme Court in January 2014.
ICTJ has worked in Nepal for several years on issues relating to truth, reparation, and gender justice. In this edition of the ICTJ Program Report, ICTJ
Nepal Senior Associate Santosh Sigdel joins us to discuss efforts underway to address the crimes of the past.
Nepal
July 1, 2014
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Nepal is still undergoing a transition from its civil war, which formally ended with a peace agreement between the government and
Maoist rebels in 2006. Could you introduce us to the transitional justice agenda that was established after the peace agreement?
Nepals peace process started in 2006, resulting in a Comprehensive Peace Accord (CPA) in November 2006 and an Interim Constitution
in 2007. After the peace agreement, there was an initial commitment to confront the abuses the country has suffered. To do so, the
political leadership at that time put forward proposals for two separate commissions: a Truth and Reconciliation Commission (TRC),
and a Commission of Inquiry on the Disappearance of Persons (COID). As a result, both the CPA and the Interim Constitution
contain provisions to establish a TRC and a commission to investigate disappearances.
Overall, since the time of the peace agreement, efforts to secure justice and reckon with the past have been fraught with political
tensions and continual obstacles. ICTJ has consistently argued that the polarization of the debate on transitional justice mechanisms in
Nepalled to other fundamental faws being overlooked. Nepal has provided some relief to victims of the confict through its Interim
Relief Program (IRP), but has yet to initiate a comprehensive reparations program.
The real problem weve found is the lack of
discussion among the political leadership about
why a broader spectrum of transitional justice
measuressuch as genuine truth-seeking,
reparations and institutional reform are
needed to secure Nepals transition to lasting
peace. Although elements of civil society
continue to push for criminal investigations
and prosecutions, powerful political elites
have effectively reduced transitional justice
policy discussions to the truth commission
and blocked progress in other areas. Even
discussions related to the truth commission,
the debate has focused primarily on provisions
relating to amnesties and prosecutions and
ignored a serious examination of what would
be an effective mechanism to advance the right
to truth.
In this context, an ordinance to establish the truth commission was adopted in March 2013. However, it was non-compliant with
international standards because it granted the commission broad-ranging discretionary powers to recommend amnesties for perpetrators
of serious human rights violations. It was struck down by a Supreme Court ruling in January 2014, under which the government was
required to revise the ordinance to ensure its compliance with international law and the Interim Constitution, and to establish a
separate commission on disappearances.
Disregarding the Supreme Court, the government tabled the Bill on Commission on Investigation of Disappeared Persons, Truth and
Reconciliation (COID-TR) which was in fact a poorly revised version of the COID-TR ordinance rejected by the Supreme Court.
Although a number of amendments to the Bill were proposed by parliamentarians on April 25, these were not registered in parliament
and the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation (TRC Act) endorsed by the President
and passed into law on May 11, 2014 is essentially the same as the 2014 Bill and 2013 Ordinance.
ICTJ continues to work towards the creation of a credible, independent truth commission. For now, that means working with victims
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groups and others to push for changes in the current law. Depending on the outcome of these efforts, we would provide information
and technical support to commissioners and staff on a range of issues, including the implementation of its mandate on reparations
using fndings, analysis, policy recommendations, and other products developed through our work on reparations.
What kind of demands for truth and justice do victims have for what they suffered during the war?
Victims and civil society
have consistently argued
that there needs to be
justice for confict-related
human rights violations
in Nepal. These
groups are particularly
concerned with the
question of impunity:
they want to know
whether perpetrators will
be prosecuted or will be
granted amnesty.
We have also seen an
increased demand for
truth concerning the
fate of the disappeared:
they want to know the
whereabouts of their
loved ones, and they are
waiting for an answer to
know whether their loved
ones or relatives are alive
or not. They want to know what happened, and they want the perpetrator to be held accountable for what they did.
But at the same time, due to the economic hardship and economic challenges, reparation and economic compensation is also very
important for them. In many families, the person who disappeared was male and thus the sole breadwinner. The widespread loss of
men in these families has left many women vulnerable in unique ways, which Ill address later.
With so much attention on the proposal for the TRC and the COID, victims have been actively engaged throughout the entire process
and continue to organize so their demands are heard by political decision-makers. In light of the passing of the TRC Act, on June 3,
2014, confict victims fled a writ petition (070-WS-0050) to the Supreme Court (SC) challenging the TRC Act on the grounds that
several of its provisions contravened the Interim Constitution (2007). 234 victims from across the countrylikely the largest number
of writ petitioners appearing on a single writ in Nepals legal historyrequested that the Court issue an interim stay order halting the
implementation of three problematic sections of the Act.
What kind of work is ICTJ doing in Nepal, and what are our programmatic priorities?
ICTJs engagement in Nepal began in 2006 and an offce was established in June 2007. Since then, we have worked closely with key
stakeholders in the countrys slow efforts to address the harms of the past. In particular, we work with victims, civil society, and
government, parliamentarians and political parties to support and promote national efforts to establish genuine, victim-centered and
gender sensitive transitional justice mechanisms. We have done this through a combination of technical assistance and policy guidance,
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applied research and support to victim participation.
A large part of our work is building informed constituencies among policy makers, civil society, victims, and the international community
who support and can advocate for the development and implementation of effective policies on all components.
We work directly with policy makers to provide technical guidance and practical, creative solutions on policy and legislation, and on
practical issues around the design and implementation of transitional justice processes. We also infuence policy makers by providing
non-governmental stakeholderslike civil society, victims groups, and international stakeholderswith technical expertise and
international comparative experience to support their analysis and to inform advocacy and policy positions; to support strategic
thinking and planning among civil society and victim stakeholders, and facilitate coordination among them.
ICTJs engagement in Nepal seeks to ensure that transitional justice in the country is informed by rights and needs of victims by
increasing their capacity to infuence and meaningfully participate in national processes to design and implement policies. In the
context of on-going political resistance to transitional justice, we choose to take approaches that can amplify voices of victims and
survivors, support broader public interest and engagement on the issue.
Part of our goal is also to generate broader support for transitional justice in Nepal by engaging a wider range of national civil society
stakeholders in policy discussion and design.
Aside from our extensive engagement with stakeholders as the plans for truth-seeking move forward, we have also been quite active
on issues of reparations, with particular attention to the wives of the disappeared. And through our research, we have also examined
how an ad hoc vetting mechanism for offcers in senior command positions could help consolidate democracy in Nepal.
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Nepal has provided some relief to victims of the confict through its Interim Relief Program (IRP), but has yet to initiate a comprehensive
reparations program. In ICTJs opinion, what needs to be done to ensure victims rights to reparations are actually fulflled?
The IRP has responded in part to some short-term needs resulting from the violations. However, it has not delivered longer-term
measures to address harms resulting from human rights violations, does not acknowledge State responsibility for violations committed
by its agents or for failing to protect victims, and excludes certain categories of victims. As such, the IRP falls short of international
standards for reparations.
ICTJ has documented additional
concerns including the lack of
consultation with victims in the
design of various elements of the
IRP, the burdensome process of
application, and the vulnerability
of the program to political
infuence.
Weve also contributed expert
recommendations to the IRP:
recently, at the invitation
of Ministry of Peace and
Reconstruction (MoPR), ICTJ
participated in consultations on
the design of a psychosocial
program under the IRP and
prepared written comments to
the International Organization for
Migration (IOM) on its manual for
the implementation of government
guidelines on the program.
The issue of reparations for victims, however, spans far wider than the IRP. Under the COID-TR ordinance, the truth commission
is mandated to recommend reparations for victims of confict-related human rights abuses. However, there is a lack of clarity around
how the truth commission would establish a reparations program. Although recommendations for reparations frequently emerge
out of truth commissions in a number of other countries, there are other examples where such programs have been designed and
implemented separately. We continue to explore and promote options to begin the establishment of a reparations program outside
the framework of a truth commission.
Short-term, practical measures can be taken to alleviate the most pressing needs of certain categories of victims. Our research on wives
of the disappeared, for example, revealed that among the obstacles preventing these women from rebuilding their lives were issues
of land and property inheritance and their husbands lack of legal status. These issues are resolvable through legal or administrative
measures that could be taken pending the establishment of a more comprehensive reparations program. Likewise, preliminary fndings
from ICTJs reparations research highlights the acute economic and social needs of victims, including those who are benefciaries of
the IRP, that require immediate responses.
The research also points towards notable variations in needs according to the type of violation/abuse suffered (killing, disappearance,
torture and SGBV), victim profles (in particular in relation to gender and caste), and between short and longer-term needs or aspirations
(material and non-material), and thereby underscores the need for carefully designed programs that address specifc harms and needs.
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In sum, our work on reparations seeks to ensure that the IRP is not considered the end goal, but rather the precursor for a comprehensive
reparations program. Our research is being used as the basis to engage and support governmental and non-governmental stakeholders
to identify policy options and measures for the design of a future reparations program, and to initiate processes for policy development
and implementation.
Going forward, specifc attention will be given to the question of whether a combination of community and individual reparation
measures are appropriate, given the high level of violations suffered by marginalized groups, in particular Dalits and Janjatis. There
will also be an explicit gender-focus to the work. We want to ensure that gender is factored into the design of any future reparations
program, and that methodologies are developed to support womens access to it.
We will also explore other routes through which reparations can be provided to victims. Building on previous work with the MoPR
on the IRP, we will seek to engage them and other key ministries in a dialogue on the fulfllment of victims rights to reparations, and
on ways in which this can be achieved through, for example, extending the IRP to other categories of victims (in particular victims
of SGBV and torture) or developing additional programs that respond to rights and needs not addressed by the IRP Based on the
outcome of these dialogues, ICTJ will seek to provide technical guidance to government-led processes of designing and implementing
future policies.
As you mentioned, the vast majority of those killed
or disappeared in the war were men. ICTJ continues
to conduct extensive research about the wives of
men who disappeared. Could you explain the effect
of disappearances on these women, and what kind
of work will ICTJ be doing in the future?
The effect of confict on wives of disappeared is
multifaceted. There have suffered economically,
legally, socially and culturally due to disappearance
of their husbands. In more than two-third of
surveyed households, the disappeared male was the
main breadwinner. With little or no education, no
employment opportunities and burden of caring
for their children and elderly relatives, the life of
the wives of disappeared can be extraordinarily
challenging.
Due to the multiplicity of ethnic groups and different geographical regions in Nepal, without the truth about their disappeared spouses,
societal reactions to these women vary greatly: in some communities they are encouraged to remarry, while in some societies or some
ethnic groups, they are pressured to live as a widow, a status which carries an enormous social stigma. Although social perceptions
of widowhood are changing, most womenespecially those living in rural areasstill face considerable socio-economic diffculties.
Last summer, ICTJ published Beyond Relief: Addressing the Rights and Needs of Nepals Wives of the Disappeared, a major report
that presented fndings on the economic hardship endured by women in Nepal whose spouses were disappeared. As mentioned above,
the research revealed that among the obstacles preventing these women from rebuilding their lives were issues of land and property
inheritance and their husbands lack of legal status. These issues are resolvable through legal or administrative measures that could be
taken pending the establishment of a more comprehensive reparations program.
The report was well received. Members of government attended the launch of the report in August, and at the event, Nepals National
Womens Commission publically stated that now they recognize the problems of the wives of the disappeared and they will advocate
for legal and administrative reforms.
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Serious human rights violations were committed during Nepals civil war. How has the country dealt with criminal investigations into
the past, or sought accountability for the perpetrators of serious crimes?
Unfortunately, there has been a systematic failure to investigate and prosecute serious confict-related crimes in Nepal. Obstacles
to prosecutions are well documented and include lack of independence of police and prosecutors, direct political interference and
obstruction, use of the military justice system to shield perpetrators, and a failure to codify serious crimessuch as torture and
enforced disappearanceinto national law.
One example is case of journalist Dekendra Thapa from Dailekh district. Dekendra Thapa was allegedly killed in 2004 by then Maoist
insurgents. In 2008, Mr. Thapas body was exhumed. On 28 August 2008, his wife fled a First Information Report (FIR) at the District
Police Offce, Dailekh District, on his abduction and murder, listing eight Maoists cadres as perpetrators. On 5 January 2013, the police
arrested fve alleged perpetrators. In January 2013, Nepals Attorney General, Mukti Pradhan, sent instructions to the local police and
the prosecutor not to move forward with the investigation. However, the Supreme Court ordered the then Prime Minister Baburam
Bhattarai and the Attorney General not to interfere with then ongoing investigation. On 28 January the district attorney of Dailekh
fled murder charges against nine suspects. The case is still ongoing.
The passing of the new TRC Act has brought new obstacles, because it contains an ambiguous provision where it says that the TRC
will investigate into ongoing cases. The provision would appear to be a means to subvert existing judicial processes. We will have to
wait and see how the TRC chooses to proceed in this regard.
What are the next steps for the TRC and COID?
As mentioned above, more than two hundred victims from across the country requested that the Supreme Court issue an interim stay
order halting the implementation of three sections of the Act relating to amnesty, reconciliation and recommendation for prosecution
as a preemptive measure; and asked the court to require amendment in those provisions. In the preliminary hearing, held on June 3,
2014, the court did not issue an interim order but decided to hear the case with priority. Next hearing on the case is scheduled for 10
July 2014. Were waiting to see what will be decided.
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In the absence of an interim order, it is likely that the government will continue making preparations for the establishment of the two
commissions. Indicative of this is the governments appointment of members to the committee tasked with making recommendations
for commission members and chairperson. The appointment process was not at all transparent however and has been widely criticized
by victim representatives on the grounds that it not only contravenes the interim constitution but also that it should have waited until
the Supreme Court reaches a verdict.
Photos: (Top) Women light butter lights in Kathmandu (Lyle Vincent/Flickr); Nepalese people hold the national fag as they attend a rally demanding peace,
social harmony and drafting the constitution on time in Katmandu, Nepal, May 23, 2012 (AP Photo/Niranjan Shrestha); Police on the streets during
student protests (Ingmar Zahorsky/Flickr); A farmer in Beora, a small farming community in Rupandehi District (CIAT/Flickr); A woman in Nepal
looks out her window (UN Photo/John Isaac); Head of Nepals interim government, Khilraj Regmi, right, presents the best women offcer cadets cane to the
former Maoist combatant woman offcer at Nepalese Military Academy in Kharipati, Nepal, Monday, Aug. 26, 2013. Seventy former communist rebels
graduated from Nepals military academy on Monday and became offcers in the national army they once fought. (AP Photo/Niranjan Shrestha); Durbar
Square in Kathmandu, is a UNESCO World Heritage site (Jon Harper/Corbis).
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