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Transitional Justice PDF Print E-mail

Transitional justice is a priority theme of FOHRID's working area. Overall goal of this theme is To establish culture of peace through conflict resolution and promoting reconciliation for sustaining peace initiative and enabling victims to claim and express their rights through transitional justice mechanism. It is necessary to carry out documentation of the violations of human rights and humanitarian law during armed conflict, including cases of disappearance; work for dealing with the past and build public consensus on prosecution for serious human rights violations; identify actual needs of the victims, build their capacity and promote reconciliation engaging victims and non-state actors; push for a national policy on reparation and reconciliation; and advocacy for establishing credible transitional justice mechanisms, such as TRC and Commission on Disappearance to attain these goals. FOHRID has been implementing its activities focusing on the issues of vetting process and reparation model. Nepal is going through peace process in the post conflict period. Under such circumstances, it is not possible to institutionalize democracy and sustainable peace without transitional justice mechanism.

The parties to conflict have agreed in the Comprehensive Peace Accord (CPA) to establish transitional justice mechanism such as TRC and Commission of inquiry on Disappearance. Establishing transitional justice institutions, consistent with international standards, would be a crucial step towards dealing with conflict related violence. An ordinance setting framework for the establishment of a Commission of Inquiry on Disappearance was passed in February 2009. The ordinance has serious flaws in its provisions that hinder effective criminalization of disappearance, and independent functioning of the Commission. The Ministry for Peace and Reconstruction needs to conduct intensive public consultation to make it perfect. The two commissions must be established with strong and independent mandates and support their ability to function free from interference.

The components including identify issue of victims, organize victims' groups, media mobilization, and publication / dissemination are being conducted under this activity. To work in this issue, ActionAid Nepal provided funding and technical cooperation was arranged from the OHCHR and ICJ.

 

1. Management of transitional justice and vetting process

The conflict took a terrible toll on the people of Nepal, with both parties to the conflict being responsible for serious violations such as extrajudicial killing, enforced disappearance, rape, torture, displacement and so on. The poor and the marginalized people were badly affected by the conflict. Yet, no significant measure has been taken to address the grievances of the victims as state of impunity is prevalent. The post-conflict human rights concerns have not been adequately debated because of various political and non-political reasons. There hasn't been any debate initiated as yet which could facilitate the process of reconciliation. Reconciliation is an over-arching process which includes the search for truth, justice, forgiveness, healing and so on, hence is a long-term process. Vetting is an indispensable component of transitional justice process. However, the stakeholders are not clear about its concept and importance. Therefore, this activity was implemented to hold intensive interaction with stakeholders on the issue of vetting process. The program was jointly organized by FOHRID, Citizen's Task Force to Combat Impunity and ICJ on 21 February 2012 in Kathmandu.

 

Outcome / conclusion of the program

  • The participating stakeholders intensively discussed various dimensions of the vetting process in the context of transitional justice.
  • We are lagging behind to raise the issue of vetting in Nepal.
  • Vetting has been tried to implement several times in the past, for example, through the formation of Mallik Commission and Rayamajhi Commission. However, the subsequent governments were not honest enough to implement recommendations of such commissions. Lack of conceptual clarity also hindered its effectiveness.
  • The vetting process can relieve the convicted people from their guilty feelings of their past deeds.
  • Now the people want to forget about the bitter past. They want to restart their lives in the new environment. Vetting helps positively in this endeavour also.
  • The proposed TRC and Disappearance Commission can perform vetting, but we should not stop raising this issue just depending upon these commissions which are yet to be formed.
  • Vetting should be implemented through a fair and independent manner following due process of law.
  • Role of civil society is important to exert pressure for implementation of vetting process with the aim of effective transitional justice in the post conflict Nepal.
  • Vetting is an indispensable component of transitional justice process. As the stakeholders are not clear about this process, more research, study and discussion is necessary on this issue.
  • We can learn more about vetting process exploring the similar applications at the international level.
  • We need to formulate an effective strategy regarding what to do next for vetting process to ensure effective transitional justice.

 

2. Policy level advocacy through Civil Society Forum for Transitional Justice and the New Constitution
End of decade long armed conflict was declared formally after 12 point agreement followed by CPA between the then Nepal Government and the CPN-Maoist. Even after end of conflict, the responsibility to bring the perpetrators of the armed conflict to justice system and ensuring effective justice to the victims is still at large. Many provisions relating to transitional justice reflected in the Interim Constitution of Nepal, 2007 and the CPA have not been implemented as expected. The political parties have been indifferent towards formation of transitional justice mechanisms such as TRC and Disappearance Commission.

In this backdrop, the Civil Society Forum for Transitional Justice and the New Constitution has been formed. The Forum aims to provide an opportunity to civil society actors, human rights professionals, victims' groups and journalists to hold constructive dialogue on constitutional issues for transitional justice in light of international human rights law and come up with a common position of the civil society on the key issues. The issues particularly include an exception of retrospective criminal law to deal with serious crimes, non-admissibility of amnesty (de facto and de jure), non-applicability of statutory limitation in the serious crimes, guarantee of right to effective remedy and reparations, exclusivity of civilian courts’ jurisdiction over all offences except that are of purely military nature and retention of the transitional justice mechanisms, viz., TRC and Disappearance Commission. The forum is intended to forward consultative and interactive events to advance the common position of civil society, which could guide the entire civil society advocacy to address the problem of impunity through new constitution. The initiatives of Civil Society Forum on Transitional Justice and the New Constitution are being forwarded with the technical cooperation from the OHCHR Nepal and ICJ. Feedback and conclusion of the Forum organized at different times are submitted to the Constituent Assembly and political parties. Assessment of some of the recommendations made to the stakeholders under this initiative is given below:

a. Serious crimes under international law to be addressed by criminal justice system in the new constitution and provision of right relating to justice to address such crimes:
Serious crimes under international law should be criminalized through the domestic criminal justice system. For this, a provision allowing formulation of retroactive law should be incorporated in the new constitution. This provision should be incorporated under right regarding justice in the fundamental rights of the new constitution. Serious crimes under international law, which are also the crimes of international concern, are adopted through UN Resolution no. 2391(23) of 26 November 1968. Non-applicability of statutory limitation in the war crimes and crimes against humanity has been adopted by the international community. Therefore, the new constitution should incorporate a provision not allowing statutory limitation in such crimes. The crimes such as enforced disappearance should be defined as continuous crime and statutory limitation should not be allowed in such crimes.

b. Recommendation for rights and remedy under substantive and procedural law for management of transitional justice:
Provision for remedy against human rights violations should be effectively incorporated in the new constitution. Right to legal remedy should be ensured for any one in the war crimes, crimes against humanity and genocide. The substantive and procedural laws should be formulated according to the provision in the new constitution. The constitution should guarantee right to receive justice through prosecution against perpetrators at any time.

c. The issues and provisions to be addressed in the long run by the state under structural framework and directive principles for transitional justice:
Nepal is currently at the transitional phase to institutionalize democracy and peace after the armed conflict of the past. The Constituent Assembly is formulating a new constitution as a departure point for ensuring new Nepal by addressing transitional justice issues. The political parties and other stakeholders must be sensitive for successful restructuring of the state. The components of transitional justice such as truth seeking, prosecution, justice and reparation should be addressed immediately. The issues such as institutional reform, legal reform and livelihood of the victims should be addressed as long term issue. We must go forward with long term vision for security sector reform and vetting process.

 

3. Transitional Justice and New Constitution
An Exception of Non-Retrospective Criminal Law To Address International Crimes This program was organized on 26 November 2010 jointly by OHCHR, ICJ and FOHRID to sensitize general stakeholders on the efforts made at the CA to incorporate a provision of retrospective law in the new constitution. The program was held with a presentation of position paper by Advocate Rajkumar Siwakoti entitled "Provision to formulate retroactive law under right regarding justice in the new constitution: Additional opinion and solution" and legal advisor of OHCHR Advocate Raju Chapagai entitled "Transactional Law and New Constitution: An Exception of Non–Retrospective Criminal law to Address International Crimes". After presentation and speech from dignitaries', other participants from different institution expressed their views and suggestions. The participants were Prem Bahadur Singh, Minister of Law and Justice, Ramesh Lekhak and Rukmani Chaudary, CA Members and Members of High Level Task Force and Gauri Pradhan, Spokesperson of NHRC. Following conclusion was drawn regarding jurisprudential ground to incorporate constitutional provision with retrospective effect and to seek legal remedy based on the opinion expressed by experts, Members of the then Interim Constitution Drafting Committee, CA Members and other participants:

No person shall be convicted for committing any act which is not punishable according to existing law and no person shall be punished more than what is applicable at the time of offence.
Provided that it shall not hinder prosecution and punishment by formulating law with retrospective effect in the offences relating to genocide, war crime and crimes against humanity.
Every person shall have the right to seek legal remedy against impunity or crime of genocide, war crimes and crimes against humanity.

 

4. Interaction on Problem of impunity and Bill Relating to Management of Disappearance of Persons, 2066
Nepal government issued "Disappearance of persons (Charge & punishment) Ordinance, 2065" to address the issue of disappearance. After much criticism on its weaknesses, a replacement bill was tabled in the parliament. Concerns were again raised from all corners that this Bill is not complete and it does not comply with the international standard and international criminal justice system. It failed to address impunity prevalent behind disappearance. Therefore, a consultation meeting was jointly held by ICJ and Citizen's Task Force to Combat Impunity on 24 April 2009 in Kathmandu realizing need to discuss this issue between civil society and the CA Members. Total 41 persons including representatives of political parties, human rights and civil society leaders, representatives of OHCHR Nepal, members of the families of disappeared people, journalists and lawyers.

 

5. Interaction program on law relating to disappearance with Hon. Members of Constituent Assembly / Legislative Parliament
On 1June 2007 (2064 Jestha 18), the Supreme Court ruled government to form a high level commission to effectively address the problem of disappearance but it is not implemented till now. The government proposed Disappearance of Persons (Offence and Punishment) Ordinance 2065. People have raised question on the intention of the government as it is enforced immediately after the session of the Legislature-parliament concluded. Considering this controversy, an interaction program was jointly organized by FOHRID and Citizen's Task Force to Combat Impunity on 13 February 2009. Funding to conduct the program was arranged jointly by FOHRID and OHCHR-Nepal.

The program was conducted as round table interaction. Gauri Pradhan, Member and Spokesperson of NHRC presented his paper entitled 'Suggestions of National Human Rights Commission on Disappearance of Persons (Offence and Punishment) Ordinance, 2065' Then the floor was opened for obtaining views of CA Members and other stakeholders on the issue. Sapana Pradhan Malla and Puransingh Dayal, CA Members of CPN-UML, Ramesh Lekhak and Jagadish Narasingha K.C., CA Members of Nepali Congress, Sarbadev Ojha, CA Member of Madhesi Janadhikar Forum, Nilambar Acharya, CA Member of civil society and Former Law Minister, Sabitra Gurung (Dura), CA Member, UCPN-Maoist, Laxman Prasad Aryal, former Justice, Supreme Court expressed their views. The participants discussed the international practice on disappearance and whether or not the ordinance is able to fully address the problem of disappearance and impunity in Nepal.
The policy level advocacy was implemented with two dimensions. Firstly, it aims to bring the voice of victims of local level to the stakeholders at the central level. Secondly, it aims to exchange international experiences on TRC, for discussion on how it can address the economic, social and legal issues of victims and to draw the attention of major stakeholders on these issues. Under this activity, several round interaction / consultation meetings have been held at the regional and national level. The lapse and gaps in the TRC and Disappearance Bills drafted by the Ministry of Peace and Reconstruction were identified through these activities and lobbying was conducted with the stakeholders for its imprevement. FOHRID collaborated with civil society to draft alternate Bills on TRC and Disappearance and submitted it to the concerned authority. Policy level advocacy is being conducted to promote accountability through ending impunity and ensuring transitional justice.
This component played facilitating and consultative role for advocacy on the issues of conflict victims at the policy level. This effort sensitized policy makers and other stakeholders to address the grievance of conflict victims. They have expressed commitment to prepare TRC Bill according to the needs, expectations and demand of the victims during the programs and with the lobbying delegation. To this effect, the Ministry of Peace and Reconstruction has informed that it would involve the general stakeholders at the local level in the process of finalizing the proposed Bills. Though the Ministry has conducted consultation programs, it has not enforced the TRC Bill and Disappearance Commission Bill till now. Following table presents detail of the involvement of stakeholders in the policy level advocacy on transitional justice conducted by FOHRID:
 



Table 6: Involvement of stakeholders on the policy level advocacy on transitional justice

S.No.

Participation

Gender

Representation by type

Total

Female

Male

Victims

Policy makers

Others

1

101

264

67

33

265

365

 

6. Media Mobilization
FOHRID has been raising victims' issues through media mobilization. Under this component, FOHRID publishes articles and features in the national dailies, weeklies and magazines. Main objective of such publicity is to draw attention of the stakeholders on the issues of conflict victims.

 

7. Publication / Dissemination
To sensitize the general stakeholders on transitional justice, FOHRID has been publishing resource materials including UN documents and reports of the Secretary General. FOHRID has already translated and published Basic principles and guidelines on the right to remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, Principles on housing and property restitution for refugees and displaced persons, Guiding principles on internal displacement, The rule of law and transitional justice in conflict and post conflict societies - Report of the Secretary General. "Conflict victims and justice" has been published as a resource material on transitional justice. This publication has incorporated the issues such as Truth determination, justice and impunity, Transitional justice, TRC, Provisions of reparation, Verification, justice and livelihood of conflict victims, Some international experiences and seeking truth, International experiences and best lesson learning on shadow tribunal. We have been conducting activities such as research, study and publication of write ups to combat impunity and promote accountability.

 

Press Release

Impunity aggravated by promotion of those alleged of serious human rights violation, failure to prosecute and case withdrawal in Nepal 11 October 2012, Kathmandu, Nepal. Nepal government has failed to bring into justice system and prosecute those who are alleged of inv... Read more
International Justice Day-2012, FOHRID Urges Government of Nepal to ratify the Rome Statute of ICC 16 July, 2012, Kathmandu, Nepal Every year on 17 July the world celebrates International Justice Day (IJD) to commemorate the adoption ... Read more
Nepal: Criminalize torture and end impunity June 25, 2012, Kathmandu,Nepal We are observing June 26, 2012, the UN International Day in Support of Victims of Torture. The expressio... Read more
Appeal for immediate accession/ratification of the OP-ICESCR by Nepal Government 07 May 2012 (2069 Baishakh 22), Kathmandu, Nepal Nepal Government should immediately accede/ratify to the Optional Protocol to the Inte... Read more
Nepal must strengthen prosecution against impunity 12 January 2013, Kathmandu, Nepal. UK authorities arrested Nepal Army Colonel Kumar Lama on 3rd January 2013 from Sussex for his alle... Read more
Appeal to Nepal government to become accountable to respect and protect people's right to life 28 January 2013, Kathmandu, Nepal   Similar to the previous years, people in terai faced severe cold wave this winter also, ... Read more

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