Both of their remarks indicate the prevalent misconception or perhaps, a deliberate delusion on the part of the politicians to avoid accountability of any nature that TRC is the only way to deal with war crimes and is a solution to all justice-related woes, including the end of impunity. More importantly, the prevailing argument that any steps such as presenting people such as Major Niranjan Basnet court must wait until the TRC is formed is worrisome. Politicians like Minister Bhandari and Pun should understand if they are genuinely unaware that nothing, including the TRC, prevents victims from seeking justice in a civilian court and that they don’t have to wait for bodies like the TRC to be formed to get justice. The justice system, for instance, still has the authority to take actions on cases such as Maina Sunwar or Arjun Lama regardless of the existence or non-existence of TRC or even in cases where there has been reconciliation between victims and perpetrators after TRC completes its work.
Thus, our leaders’ argument that the formation of TRC is going to end impunity is clearly misleading. To end impunity, the state apparatus needs to be independent and accountable, which would then enable perpetrators to be brought to book. For that, political interference in the justice system needs to end. Everyone should be treated equally before the law and court orders should be respected. People like Major Basnet should present themselves before the court so that an independent investigation can take place on the allegations faced. There cannot be any peace and justice in our society if independent judicial bodies are not allowed to function and as long as there is someone or some entity functioning above the law.
Let’s be accountable and honest with the victims of conflict. They have a right to know why bodies such as TRC are being formed. Let’s not deceive victims by saying that TRC will deliver all their justice-related demands, including persecution.
Equally important is to understand that TRC is not a prosecuting body and it has power only to issue recommendations for prosecution, meaning even after the TRC completes its work, the government still needs to follow-up the recommendations, including prosecution. Hence, the justice system will have the responsibility to follow-up on cases even after the TRC completes its task. In the light of this widely-accepted concept of truth commissions, it should not be difficult for people to understand that victims like Devi Sunwar, Maina’s mother, do not need to wait for justice until TRC is formed as the case is already before the court.
Clearly, the problem is not just lack of understanding of the concept of TRC. The situation reflects two fundamental issues: Lack of political will, a genuine commitment to end impunity, and a classic tension of pursuing peace and justice in parallel during the transition period. The Comprehensive Peace Agreement (CPA) clearly says that the parties to the conflict “will guarantee not to encourage impunity” will promote “good governance by eliminating impunity” and will safeguard the rights of victims. However, it commits to form the Disappearances and TRC Commissions to investigate gross human rights violations “to create the situation of reconciliation in the society” but there is no clear mention that the perpetrators of human rights violations will be brought to justice to end impunity. Alternatively, there is no clarity in the CPA if some justice will be traded off for peace and if so, to what extent. What seems to have happened is that the political parties left these issues for further “negotiation” to avoid sensitivity while securing a peace agreement. Perhaps, they feared that they will themselves be implicated.
Hence, these unexamined and unresolved issues have helped the Maoists, the army and other political parties to escape any form of accountability for past and ongoing human rights violations as well as enabled the same perpetrators to commit more crimes. This has resulted in a cycle of violence and further entrenched impunity. Any attempts to push for accountability for the conflict-related human rights violations are met with resistance. Arguments that the TRC will solve all justice-related problems and end impunity are put forward to silence the victims and advocates.
Our leaders and advocates of TRC need to be clear that we cannot expect the TRC to prosecute the perpetrators of human rights violations as it cannot and will not. At best, what it can do is to recommend prosecutions to the Attorney General’s office as it stands in the current TRC draft bill and help create an environment for prosecution. TRC is supposed to reveal the larger social and political context, which enabled such crimes to take place in the first place and recommend various forms of amends for the victims. What TRC can do is to enable a level of truth, discourse and dialogue and perhaps some reconciliation; it can support wider processes of state-building and democratization process. However, it cannot immediately and magically ensure prosecutions as it has no power as such.
Thus, let’s be accountable and honest with the victims of conflict. They have a right to know why bodies such as TRC are being formed. Let’s not deceive victims by saying that TRC will deliver all their justice-related demands, including persecution. Let’s be clear with them what the TRC can and cannot do. This will help victims to be a part of the transitional justice discourse and avoid unrealistic expectations. Otherwise, it may not only lead to a sense of a deferral of justice for many but also frustrations and a sense of unfulfilled expectations.
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