A victim-centred approach that reflects the self-identified needs of victims is integral to the success of Nepal’s transitional justice process. Successes have been seen in elements of the Truth Commission (TRC), Commission of Investigation on Enforced Disappeared Persons (CIEDP) and Interim Relief Program (IRP). Yet, these processes have either made little progress in fulfilling their mandates, lacked transparency and victim consultation, or excluded certain categories of victim altogether. Further victim-centred action is needed from the Nepali government if they are to capitalise on the existing initiatives they have implemented so far. Additionally, there exists a need for psychosocial support, the return of human remains and the need for victim consultation. If action is not taken, conditions that contributed to the initial conflict will fail to be addressed and therefore are likely to continue a cycle of violence and civic distrust.
Transitional justice refers to the various methods adopted to ensure accountability, justice and reconciliation after widespread atrocities committed during conflict (De Greiff, 2012a; 31). It is considered an integral part of post-conflict reconstruction and peacebuilding. Yet, attempts to deliver transitional justice often reflect the existing power relations and fail to consider or effectively incorporate victim demands (Robins, 2011). Indeed, academics have often attributed the failure of some countries’ transitional justice mechanisms to the lack of an adequate victim-led process (Jamar, 2018). A victim-centred transitional justice process is an approach that develops as a result of the specific needs of victims which are identified by victims and effectively places victims at the centre of the practice (Robins, 2011).
Yet, despite some progress towards a victim-centred process, transitional justice in Nepal continues to be top-down, led by elites and in practice seldom led by the needs of those most affected. More than a decade on from the ending of Nepal’s Maoist civil war between 1996-2006, many victim needs have been unmet by the transitional justice process. Victims either have limited or no role altogether within the procedure and ‘are forced not only to follow but […] accept the decisions made on their behalf with no consultation’ (Kumar Bhandari, 2015; para 34). The Comprehensive Peace Agreement (CPA) that ended the conflict between the Communist Party of Nepal – Maoists (CPN-M) and the Nepalese government in 2006 has included several transitional justice assurances such as discouraging impunity, creating an environment of reconciliation and ensuring relief to victims’ families who had faced significant human rights violations. However, whilst there have been some successes, much of this has failed to materialise.
Victim rights and protections are concepts that are strongly based in international law, enshrined in, inter alia, the International Covenant on Civil and Political Rights (ICCPR), to which Nepal is party. As such there is incumbent upon the state a legal obligation to prevent and remedy violations. Victim participation has been identified as an essential component of a successful victim-centred approach. On this point, the UN Special Rapporteur on Truth, Justice, Reparation and Non-Repetition (TJRNR) has asserted that measures and mechanisms of Transitional Justice must recognise victims and include ‘meaningful participation’ in order to promote civic trust and strengthen the democratic rule of law (De Greiff 2012, 17; Impunity Watch, 2014). Other representatives to the United Nations have highlighted the importance of consulting marginalised groups and the active role they must play in transitional justice mechanisms if they are to be successful (International Peace Institute, 2015). These may take various forms including truth-seeking, prosecutions, reparations and non-recurrence measures (Impunity Watch, 2014).
However, a significant amount of transitional justice literature is instead led by experts speaking for victims on their behalf. This has been shown to belittle victim agency and unique human identities and often leads to false generalisations about the varying needs of different victims (Robins, 2011; Cullinan and Mitford, 2001). Victim centred approaches to transitional justice have allowed for victims to become empowered and agents of change and can help modify power-relations that initially contributed to their victimhood (Selim, 2014). On the other hand, speaking on behalf of victims without their participation, has been proven to frequently perpetuate their disempowerment and marginality, which in this case was an important contributing factor in the initial rise of the Nepalese insurgency (Madlingozi, 2010).
There do exist legitimate criticisms of some methods of victim inclusion however, which must not be overlooked when developing policy. For instance, the re-telling of victim experiences can trigger existing trauma often negatively effecting victim well-being (Ross, 2003; Jamar, 2018). Another issue is that testimonies can become censored or revised in order to fit political agendas, which instead can foster victim disempowerment.
Yet, this does not lessen the importance of victim inclusion. Such impacts can be mitigated somewhat or avoided altogether if contingency measures are put in place. These may include measures that ensure participation is voluntary and, during interviews or dialogues, a professional that has received sufficient training in mental health and counselling is present to mitigate any re-traumatisation. Additionally, regulations can be implemented to prevent the reformatting and censorship of victim testimony in policy discussions.
Categories of Victim
In successfully adopting a victim-centred approach, policymakers must first recognise the various categories of victim within such contexts. Due to numerous and differing political loyalties amongst victims and victim groups, it is often challenging for a universal collective opinion to be reached on transitional justice procedures (Trent and Nepal, 2017). Despite semi-successful attempts to become unified there remains a rural/urban divide amongst Nepalese victim groups whereby those in more affluent and urban areas such as Kathmandu have been more able to receive a voice whilst rural regions have remained marginalised. Additionally, the needs have been perceived to differ within these different areas.
Moreover, it is important not to overlook the difference between direct and non-direct victims of the conflict. For instance, those who suffered directly include victims of disappearances, torture, rape and loss or damage to property. Yet what is often neglected are the indirect victims such as the families of the disappeared (Kumar Bhandari, 2015). Since the majority of those killed and disappeared were men, with 93% of those disappeared in Nepal being men (Robins, 2011), victim experiences and needs often vary by gender. Women, wives and mothers are therefore particularly impacted by the disappearances of men who are viewed culturally as the traditional breadwinner. Studies by humanitarian and transitional justice academics have highlighted the leading needs of families of those who have disappeared are surrounding ‘truth about the fate of their loved ones, the return of human remains and economic support to ensure livelihoods’ (Ibid).
Need for Psychosocial Support
It is also important to highlight that victim needs can change throughout time (Cullinan and Bruce-Mitford, 2001). This is something important the Nepalese government must acknowledge especially considering it has been 14 years since the ending of fighting. In some cases, certain victims and their needs may not have also been acutely apparent at the end of the conflict, such as survivors of sexual assault or rape and their subsequent need to enable their full access to sexual and reproductive health services. This has been attributed to amongst other things, the lack of relevant provisions and professional training of officials surrounding sexual assault during the conflict and stigma that victims faced, both of which resulted in significant underreporting.
One victim reported by Human Rights Watch testified “The soldiers took all my money. How could I go to the hospital? I also did not want to live”, recalling the extreme distress she felt and lack of money that prevented her from seeking medical attention when she was raped by security forces (Human Rights Watch, 2014; para 29). This testimony sadly illustrates a similar experience to many women who faced sexual violence and who did not obtain medical assistance. Numerous women therefore are still justifiably showing symptoms of trauma, highlighting the continued need for urgent assistance (Ibid, 2014) and have expressed feelings of injustice from not being included in reparations or other transitional justice mechanisms.
The need for access to counselling is also evident not only for victims but also their families to help reduce the instance of domestic violence and exclusion or rejection from partners/in-laws as a result of rape. Testimony of victims has demonstrated that women have experienced physical violence from their partners due to anger as a result of the rape (Ibid, 2014).
The Nepalese government is obligated to deliver these provisions for victims of sexual assault and to their families but currently has still not established any standard protocol in response to this need either for care or medico-legal examinations, and doctors also lack sufficient training on this (Ibid, 2014). Additionally, the lack of a victim or witness protection system is another source of discontent amongst victims that has prevented reporting or participating in TRCs.
Current Transitional Justice Mechanisms
The Interim Relief Program (IRP) administered from 2008-2014 has had some successes and addressed two significant categories of victim: families of those who were forcibly taken and disappeared and those who were killed. It has been the only program to target victims’ material needs and has faced criticism that the level of compensation was insufficient and ignored victims who had faced torture as a result of the omission of laws that explicitly criminalised it and arbitrarily excluded other categories of victim such as survivors of sexual violence. Yet, respondents of victim’s families that have been surveyed have also identified the need for memorialisation, with the majority seeking a local memorial (Robins, 2011). This was viewed as important as it allows families to feel that those who have disappeared were valued within society. Forms of memorialisation and other types of positive acknowledgment by the Nepalese authorities has been highlighted as an act that has major significance to victims and being a particularly affordable thing to implement. Yet despite this, no benefits from the IRP were given alongside either material or symbolic measures that explicitly recognise ‘the loss and continued suffering of victims and their families’ (Caranza, 2012; 4). Therefore, recommendations to implement symbolic reparations have been suggested, such as naming roads after victims who have disappeared or annual remembrance events to recognise those affected by losses of different kinds (Naughton and Meregali, 2018). This would be a fairly straightforward and cheap policy to implement that would have a clear positive impact on victims.
Nepal’s transitional justice mechanisms have also included a Truth and Reconciliation Commission (TRC) and a Commission of Investigation on Enforced Disappeared Persons (CEIDP). However, they have not met international standards or norms and have severely lacked transparency. Additionally, both commissions have been criticised by both victims and civil society organisations (CSOs) for their ability to allow amnesty to perpetrators which encourages an environment of impunity (Naughton and Meregali, 2018). Therefore, there is a need for these commissions to be seen as impartial, fair and able to ultimately provide redress.
In 2015, the Supreme Court issued a ruling that found the 2014 Act on the Commission on Investigation of Disappeared Persons, Truth and Reconciliation (‘The Act’) to be unconstitutional due to, amongst other things, the allowing for potential amnesty for violations. A draft Bill to Amend ‘The Act’ was published in 2018 which removed the blanket amnesty for serious human rights violations. However, whilst recognising some positive changes, a review of the draft bill by prominent human rights groups highlighted that the new proposed amendments to the bill still failed to allow for any substantial consultation, ignored pre-identified needs of victims and continued to have issues surrounding international law and standards (Amnesty International et al, 2018). Therefore, the draft bill must be amended further, and human rights actors have called for a more transparent consultative process, that reflects the self-identified needs of victims and civil society and meets the reparative principle of victim satisfaction.
The current terms of the TRC and CEIDP were also due to expire in early 2019 with neither of them close to meeting their targets and neither having completed a single investigation into the thousands of complaints made by victims who have faced severe human rights abuses (Jeffery 2019; Rali 2019). For instance, since their creation, less than 10% of cases have completed initial investigation phase for the TRC and the CIEDP has commenced investigations in 75% of the cases received (Jeffery, 2019). This delay has been attributed to the sheer number of official complaints received and lack of funding (Ibid.) Decisions to extend the two bodies therefore, weeks before their expiration in 2019 was a needed action. However, extending the commissions by a year is unlikely to be enough to allow for the completion of their targets unless additional funding is released that includes travel expenses and covers the salaries of professionals investigating cases (Ghimire, 2019). This is a necessary step the Nepalese government must take, or it will not reap the associated benefits of these commissions, such as restored civic trust, or meet the needs that victims have communicated.
Additionally, with the Nepalese authority’s decision to only extend the tenures for the leaders of these commissions to mid-2019 came the prospect of new committee members. This presented an opportunity for members of the many existing victim groups to hold unique and official positions within the bodies themselves, helping to deliver an authentic victim-led transitional justice approach. However, the Nepalese government appears to have missed this opportunity to appoint representatives of victim groups by continuing to go through with the new appointment process without adequate transparency and engagement or discussion with victims, failing to gain their trust (Nepal, 2019).
Need for a Consultative Processes
However, there is still an opportunity to consult organised victim groups that exist such as Conflict Victims’ Society for Justice (CVSJ) and Conflict Victims’ Common Platform (CVCP) to name a few prominent victim organisations. Consultation has also been promoted and advocated as a successful transitional justice mechanism by the United Nations, and Secretary General Kofi Anan has stated that ‘the most successful transitional justice experiences owe a large part of their success to the quantity and quality of public and victim consultation carried out’ (Report of the UN Secretary General 2004, cited in Selim, 2014). However, in addition to consultation, the Nepalese government must go further by allowing victims and affected communities the ability to actively participate and drive decisions, allowing them to become partners.
Disappearances & the Need for Human Remains
In the context of disappearances, the needs of families as indirect victims are also unique and different from victims of a single distressing event, a situation that must be acknowledged. Whilst literature suggests that mechanisms are needed to establish truth and justice, in this case of an ‘ambiguous loss’ it has also been highlighted that the needs of victims’ families extend much further than this due to the extensive psychological, economic and social consequences. As a result, it has been recommended that in situations of disappearances, transitional justice policies must be led by the local needs of victims so they can better engage with the pertinent cultural, psychological and spiritual constructs (Robins, 2011). Indeed, the need for human remains has been stressed as a means to ensure unequivocal evidence of death so that religious rituals can be undertaken. 85% of families in one study indicated that the retrieval of a physical body is of huge importance to them. Yet a lack of trust in the government equates to distrust in the human remains that may be returned to them (Ibid.). Therefore, the disappearance committee does not meet the needs of the victims as it only informs a family (if it has learnt they are dead) that they have died and no further information. Alternative recommendations have been suggested such as DNA testing or a ‘chain of truth’ system whereby comprehensive and complete information that includes details such as the individuals responsible for an arrest, the killing and the site of burial. This process would provide closure for victims suffering an ambiguous loss.
These recommendations would also mitigate the psychosocial impacts of ambiguous loss such as trauma, mental illness and stigmatisation of women. For instance, as many women refuse to except the death of their husband without concrete evidence, communities resent women who do not ‘appropriately’ dress as widows, and they have therefore experienced discrimination and stigma as a result (Robins, 2013). One member of a focus group who found herself in this situation illustrated this discrimination; ‘My in-laws call me…prostitute, witch widow etc., in front of my children when they see me around.’ (Robins, 2011; 89)
Conclusion
Whilst there have been some mechanisms that allow for victim participation such as the TRC and the IRP, these processes have either lacked transparency, victim consultation, funding to carry out their mandates and in the case of the IRP, excluded some categories of victim altogether. They are therefore failing to be victim centred. The creation of the CIEDP was an important step, in response to victim needs surrounding disappeared persons, but is also facing challenges surrounding its respect for victim needs. Additionally, to have a successful victim-centric transitional justice approach, more must be done in terms of consultation to implement the needs victims themselves have identified.
There is, inter alia, a victim need for psychosocial support, human remains alongside DNA or a ‘chain of truth’ system and the need for victim consultation mechanisms to help elevate the voices of particularly marginalised victims. If the Nepali government fails to act on these needs, the conditions that played a part in the initial conflict will fail to be addressed and therefore are likely to continue a cycle of violence and civic distrust.
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By Catherine Greenacre,The European Institute for International Law and International Relations.
