To post-conflict nations, peace comes at a price- Nepal is no exception to this. Having lived with the perils of conflict, there is surmounting pressure from all sides to restore peace in post-conflict transitional nations. It is also natural for such a nation to deal with the issue of ‘restoring peace’ as the primary agenda in its attempt towards nation-building. Grim reminders of past atrocities and gross human rights violations, therefore tend to be undermined in an attempt towards securing peace; thereby, trading ‘peace’ over ‘justice’- especially by the grant of amnesty to human rights perpetrators. Although, a complete ‘peace-justice’ trade may come with a host of short-term benefits and could therefore be attractive to such a nation; it however accompanies a host of future repercussions.
Basis of a New Nation
To begin with, failing to address severe human rights violation of the past cannot be the starting point for any new nation. The determination of a new nation to deal with issues of gross human rights violations needs to be solidified from the very beginning, and this will only be possible by the prosecution of past human rights violators. In this context, the proposed preamble to the new constitution of Nepal (as proposed by the preliminary draft of the Constitutional Committee) reads as follows- “WE, THE PEOPLE OF NEPAL….Committing ourselves to…fundamental rights, human rights…and the concept of the state of law;” If the spirit of the preamble to the new constitution is to be upheld, then it is paramount that past human rights violations be addressed with an intention towards delivering justice to the victims of such violations. Furthermore, “awareness that gross human rights violations will be punishable in future” seems to be one of the crucial objectives as set out in the preamble to proposed Bill providing for the Truth and Reconciliation Commission 2066 (B.S). The importance of prosecuting offenders responsible for serious human rights violations has therefore rightly been reflected in proposed Bill. It will also be vital for a new nation to book gross human rights violators to live up to its aspirations of upholding human rights not only through words, but by actions when necessary.
Perpetuating the Culture of Impunity
The proposed Bill providing for the Truth and Reconciliation Commission 2066 (B.S), on the very outset has explicitly dealt with the issue of ‘ending impunity’ as one of its primary objectives. If gross human rights perpetrators are not prosecuted as per due procedure of the law, the culture of impunity will thrive. Often, views have been expressed to the effect that conflict related actions must not be made agenda of national discussion, but should rather be set aside as ‘political issues/ issues of political nature’ to fall outside the purview of the judiciary. This practice of reserving issues concerning human rights violations as ‘political issues’ will prevent human rights accountability and will thus pave the way for ‘politics of threat’. Impunity will lead to normalizing violence and the nature of future politics can shape for the worst. One of major justifications for prosecution in criminology is associated with the value of deterrence it imparts on future offenders of the society. When gross human rights perpetrators are brought to justice, precedence will be set for days to come and the culture of impunity would receive a major set-back. The circumventing of judicial powers to check human rights violations in the name of ‘political issues’ will set a disastrous trend in the long run. Therefore, lack of prosecution even for gross human rights violations will institutionalize the dreaded culture of impunity- one that may be too hard to break.
Reasons for a Retributive Society
When justice is delayed- it is frustrating; but when it is altogether denied- it fuels retribution. Blanket amnesty or forced reconciliation (especially in the case of mass/community reconciliations) should not be the way to seek rehabilitation of a society in the aftermath of a conflict. As much as we would like it, political agreements at the high level sadly to not always resonate with the voices of those in the grass-root level. It becomes the responsibility of the State to develop mechanisms for the prosecution of gross human rights perpetrators so that the victims are not forced to seek justice themselves. Every effort should be made by the State towards prosecuting the guilty and securing the rights of the victims as a precursor to lasting rehabilitation of the society in a post-conflict nation.
Although, terms such as ‘human rights, ending of impunity, addressing past wrongs, bringing gross human rights violators to the confinement of law’ and their likes, have found their mention in documents such as the proposed preamble to the New Constitution and the Truth of Reconciliation Commission Bill; the complete trade of ‘peace’ over ‘justice’ cannot be ruled out in reality. Experiences from the past have shown us that legal documents can be toothless tigers without the necessary mechanisms and will of the State to pursue their objectives.