World’s Transitional Justice Ironically Ensures Freedom to the Perpetrators Further Limiting Justice to the Victims

BY TRANSCEND MEMBERS, 30 Jul 2018

Prof. Bishnu Pathak – TRANSCEND Media Service

30 Jul 2018 – The objective of this writing is to dig out the abstract meanings from a Nepali language paper on Transitional Justice Practices in the World: Truth, Justice and Prosecution Being Shadowed.  Transition is a gap period between the two-Government systems: old (past) and new (present and future). This is the situation when neither the old system (government) is completely collapsed nor a new one is fully established. In general, the satisfaction of victims serving or achieving justice during the Transition is called Transitional Justice (TJ). TJ is directly linked with the Truth Commission. It means, Transitional Justice is a core component of the Truth Commission. In the contemporary world, TJ belong to State to State, State to non-State and non-State to non-State conflicting mechanisms. At the beginning, the concept of TJ relied on State to State and State to non-State conflicting judgements only, but it, now expends non-State to non-State perspectives, too.

A few TJ Bodies, for instance, Greensboro Truth and Reconciliation Commission (USA), Truth and Reconciliation Commission (Canada) and Citizens’ Truth Commission (Kandy, Sri Lanka)  were formed to investigate the past human wrongdoings (atrocities and crimes) whose human rights were violated and or abused by the group of non-State Actors. Moreover, Chadian Commission worked even against illicit narcotics trafficking. Thus, it pursues the formal and informal investigation of the past crimes through inter-and-intra-national conflicts and intra-and-inter-group conflicts.

The Transitional Justice Commission purviews a retrospective investigation. Ruti G Teitel said that transitional justice is a bridge between two ruling systems. Former United Nations Secretary-General Kofi Annan stated that transitional justice is to ensure accountability, serve justice and achieve reconciliation against the legacy of past violations and abuses. The UN appointed the Special Rapporteur Pablo de Greiff for the promotion of truth, justice, reparation and non-recurrence dimensions. Transitional justice encompasses the accountability of (a grave loss of) person and family; highlights his or her economic, social, cultural, civil and political rights that were encroached during the past armed conflict or civil war; and seeks recovery of justice to the victims. TJ is a four-decade old concept, initiated from Uganda establishing Commission of Inquiry of Disappearances in June 1974, but a complex politico-legal phenomenon. It collects structural facts, evidences and testimonies breaking down the silence of memory of the victims, witnesses and other concerned persons. Transitional justice refers to six-pillar set of judicial and non-judicial mechanisms. Among the pillars, justice and prosecuting belongs to judicial measures; reparation and non-recurrence comply with non-judicial apparatus and truth and vetting fall under semi-judicial bodies.

The objective of TJ is to explore how different countries or a country officially or unofficially try or tries to find out truth through Commission on the course of responding wrongdoings that happened during the past intra-and-inter-national conflicts, colonial, slavery, anarchical and cultural genocide periods. Each Commission gathers documents and evidences or testimonies from the complainants or victims and witnesses to examine and evaluate a complete cause, nature, degree and patterns of truth of punitive human rights violations or abuses, crimes against humanity, war crimes and genocide. It recommends the concerned authority to ensure accountability by prosecuting perpetrators, repairing or healing the  damages in the communities or societies, serving justice to the victims or survivors, paying respect to them, satisfying them (through relief and reparation), accepting reconciliation among concerned actors, and reforming institutions eliminating the chances to  recur such conflict in future.

More than 70 transitional justice bodies have already been established across the continents. The countries which formed one form or other form of transitional justice bodies like Truth Commissions include: Albania, Algeria, Argentina, Armenia, Azerbaijan, Balkans, Bangladesh, Bolivia, Bosnia-Herzegovina, Brazil, Burundi, Cambodia, Canada, Chad, Chile, Columbia, DR Congo, Croatia, Cyprus, Czech Republic, East Timor, Ecuador, El Salvador, Eretria, Ethiopia, Fiji, Former Yugoslavia, Georgia, Germany, Ghana, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq, Ivory Coast, Jordon, Kenya, Kosovo, Kuwait, Lebanon, Liberia, Libya, Macedonia, Mali, Mauritius, Mexico, Morocco, Namibia, Nepal, Nicaragua, Nigeria, Panama, Paraguay, Peru, Philippines, Poland, Republic of Central Africa, Russia, Rwanda, Sierra Leone, Solomon Islands, Somalia, South Africa, South Korea, Sri Lanka, Sudan-Dafur, Togo, Tunisia, Uganda, United States, Uruguay, Vietnam and Zimbabwe.

Sri Lanka has the youngest transitional justice mechanism. It established a seven member[1] body, including Major General of the Army to the Office of the Missing Persons (OMP), on March 1, 2018 with a single objective to ensure reparation to more than 20,000 disappeared victims. The District Inter Religious Committee of Kandy appointed an unofficial  Citizens’ Truth Commission to find out the root causes of the communal (Singhalese vs. Muslims) conflict that was spread in early March 2018 for a week where Sri Lanka imposed a nationwide state of emergency. Kosovo has the second youngest transitional justice body that was formed with a 9-member[2] led preparatory team to set up Truth and Reconciliation Commission in December 2017. The team is now working towards preparing TRC’s legal and technical infrastructures within a given mandate for one year. National Commission on the Search for Disappeared Persons in El Salvador has been the third youngest Commission which has been established on August 21, 2017 by means of Presidential Decree.

A NGOs Coalition campaigning for the establishment of the RECOM (Regional Fact-Finding Commission) in the Western Balkan States was expected to sign first Regional Truth-Seeking Commission through the Western Balkans Summit that was held in London on July 9-10, 2018. Kosovo, Macedonia, Montenegro and Serbia were ready to establish RECOM, but some of the highest levels of victimization occurring in Croatia and Bosnia and Herzegovina during the conflict barred any such past promises from being materialized. In July 2018, Spain planned to establish a Truth Commission under the Historical Memory Law 2007 to investigate the cases of crime against humanity committed by the former dictator Francisco Franco[3] (1939-1975), who died more than four decades in 1975. Human remains of 120,000 people were exhumed from 2,591 unmarked graves. It is to be noted that Spain (estimated 140,000) is just behind Cambodia with the highest number of disappeared persons in the world.

A dozen countries have established more than one Truth Commission. These countries are: Colombia, Burundi, Uganda, Uruguay, Ecuador, South Korea, Mali, Philippines, Central African Republic, El Salvador, Sri Lanka and Nepal. Notwithstanding that Nepal has established two Commissions: Commission of Investigation on Enforced Disappeared Persons (CIEDP) and Truth and Reconciliation Commission (TRC) at a time by a single Act 2014. Formation of CIEDP and TRC in Nepal has been the first case in the world.

More than a dozen transitional justice bodies in countries such as Argentina, Uganda, Uruguay (1st), Philippines (1st), Chile, El Salvador, Haiti, Ecuador (1st), Morocco, USA, Darfur-Sudan, Burundi and Nepal (2nd, 1990) functioned for the shortest time, less than a year (12-month period). Moderately, one-and-half dozen Truth Commissions served for one to three years. Such commissions were formed in the following countries: Bolivia, Chad, Germany (1st and 2nd), Guatemala, Nigeria, Uruguay (2nd), South Korea (1st), Panama, Former Yugoslavia,  Peru, Sierra Leone, Ghana, Algeria, Ecuador (2nd),  Mauritius, Solomon Island,  Eretria and Philippines (2nd). A number of countries, namely Ivory Coast, Uganda (2nd), Sri Lanka (1st), South Africa, East-Timor, Rwanda, DR Congo, Paraguay, Liberia, Canada, Togo, Brazil, Tunisia and Kenya had worked for longer periods, more than three years. The permanent transitional justice Commissions were formed in Ethiopia (1993), Colombia (2000) and Rwanda (2002). Likewise, there were no time-limitations for the Commissions established in Honduras (1982) and Fiji (2005).

The United Nations was involved in seven countries, viz. El Salvador, Guatemala, East-Timor, Sierra Leone, Liberia, Solomon Islands and Eritrea on the issue of TJ. The tenure of many TJ bodies namely in South Africa, Guatemala, Kenya, South Korea, and Nepal among others has been extended. The last UN founded Commission of Inquiry on Human Rights in Eritrea presented its report to the Human Rights Council on June 21, 2016. And, the three-member team of Commissioners were neither the staff of the United Nations nor were they remunerated. They served in their independent personal expert capacity[4]. The UN established its Commissions in Sierra Leon, El Salvador and East-Timor, but failed to restore normalcy in Kosovo.

The Liberian truth commission threatened the government to submit its findings to the International Criminal Court if the government failed to establish an international tribunal. Most Truth Commissions are Court-like judicial and non-judicial processes bodies, but without binding authority, except in Sierra Leone.

No public hearings were conducted in Argentina and former Yugoslavia, but only 8 public hearings in Ghana, 8 national hearings in East-Timor and 15 in Brazil were conducted. Moroccan Commission held public hearings after signing the bond paper for not to disclose the names of the perpetrators whereas Guatemala did not include the perpetrators’ names in the report.

The Shining Path’s activists have been serving sentences based on civil-anti-terrorist court. Former President Alberto Fujimori who had been convicted for 25 years was pardoned in November 2017. Fujimori has been four year younger than Abimael Guzmán ‘Gonzalo’, but Gonzalo has been in life imprisonment since 1992. Thousands of Fujimori’s victims protested against the Government’s decision.

Haiti prosecuted 50 perpetrators whereas Guatemala prosecuted its former military dictator. The Philippines’ Commission had limited investigation jurisdiction over the army, but treated the insurgents differently. In El Salvador, the State security forces were responsible for 85 percent and the non-state actors for 15 percent similar to CIEDP, Nepal. The TRCs of Argentina, East-Timor, Guatemala, Morocco, Peru and South Africa partially succeeded. A large number of victims have failed to register the complaints fearing possible insecure consequences in the future.

Observing, reviewing and analyzing more than five-dozen Truth Commissions formed around the world, the author  himself reached the conclusion that immediately after the conflict is over, the alleged perpetrators order their chain of command to destroy remaining structural facts, documents, evidences and testimonies that might prove them guilty. The same perpetrators take special attention to draft the perpetrator-centric Act or Decree further weakening the voices (pains, grievances and sufferings) of the victims, survivors and other concerned actors. The alleged perpetrators prioritize cronyism to select or appoint Commissioners in the course of forming Truth Commissions. And such Commissioners defend their respective vested interest institution(s) and individuals rather than pursuing free, fair and independent investigations. In such cases, the people in general, severely criticize to the Commissioners as the past crimes of the alleged perpetrators go unpunished; controversially they are granted amnesty. Even South Africa pursued ‘let’s forget and forgive’ in the name of Christianity. As a corollary, the victims, survivors and people still blame Nelson Mandela for selling out black people’s struggle.

If the Commission initiates ‘rightly investigate the truth’ based on the storytelling, ante-mortem data, public inquiry, public hearings, interrogation, exhumation, DNAs’ test, collection of structural facts, documents, evidences and testimonies from the victims, survivors, witnesses and complainants, it either faces acute financial-resource crises or human capitals. Almost all TRCs together with Liberia, Paraguay, Philippines, South Africa and Uganda worked under low budget, lacked officials and experts, faced inadequate laws and regulations, infrastructures, and constraints of moral support. A few Commissions such as in Bolivia, Ecuador, Haiti, former Yugoslavia and Zimbabwe were disbanded (without their reports) before their tenures expired.

In some cases, the forefront leaders of the victims and their organizations who were or are manipulated by the alleged perpetrators try hard to defame the Commissioners calling them incompetent and unqualified. Such leaders often blame that the ‘Commission adopts perpetrator-centric investigation processes’. The victims who reside in the urban centers of the country often look upon self-opportunities including more relief and reparation supports, whereas countryside poor victims seek justice by means of finding out the ‘truth’ (either alive or dead) and whereabouts of their loved ones. Transitional justice has been a long neglected history owing to anarchical-powerful roles of the perpetrators and weak, poor, docile and silent nature of the victims. Moreover, victims and witnesses always feel insecure from the perpetrators if they tell the truth to the Commissions. On the other hand, they undergo uncertainty of how such politically motivated Commissions maintain secrecy of their statements and testimonies.

Thus, perpetrators influence all the mechanisms of concerned Government for ‘forgetting the victims to forgive the perpetrators’. Ironically, the perpetrators have received freedom, but the victims and survivors have been further victimized limiting their access to justice. As a counter effect, such trends generally propel the country to increase the culture of impunity.

Most of the Truth Commissions formed around the world did not follow proper Census Method of investigation. And no such Commissions reached all poor victims in the countryside. However, the Commission of Investigation on Enforced Disappeared Persons (CIEDP), Nepal tries hard to deliver World’s Best Model on transitional justice mechanism. Here are some reasons how the CIEDP is ensuring one of the best models. First, the CIEDP has collected complaints on enforced disappearances from 76 places including 75 district-based Local Peace Committees and one from its own Head Office. The complaint registration was opened in three phases (i) April 14 to August 10, 2016, (ii) March 24 to April 28, 2017, and (iii) February 13 to March 14, 2018. Second, it has already completed preliminary action and preliminary investigation of all creating individual file of each complaint registration.

Third, the CIEDP is, now leading the detailed investigation following networking tracking method or snow-ball techniques. The detailed investigation heads to several steps: (i) collecting additional information (wh-questions: what, where, when, why, how and by whom happened) on disappeared ‘loved-one’ as Storytelling from the complainant or key informant, filling the form of Ante-Mortem Data Collection and Reparation, and endowing the Statements from the concerned witness following Participant Observation. For these specific tasks, the Research Team from the CIEDP Headquarters is deployed to district headquarters and then complainant houses in the remote villages. The CIEDP is ensuring Census Method for all complaints registration. Fourth, it provides an ample opportunity of interrogation of all alleged perpetrators: ‘right to know’ and ‘right to defend’ purposes. Fifth, closed-opened and issue-wise public hearings will be held in near future. Sixth, emblematic exhumation including excavation will also be conducted. DNAs matching will also be carried out conducting DNA test of the degenerated remains and collecting reference samples from the concerned family members. Lastly, the final report with full recommendations for reparation and non-recurrence will be submitted to the Prime Minister of Nepal. And the complete name lists of the perpetrators will be handed down to the Attorney General to file the case at the Special Court to ensure accountability.

There are certain victim-centric norms to be an autonomous Commission. The principles of such Commission tend to be humanity, neutrality, impartiality and independence. Such Commission needs to have more power to summon the alleged perpetrators, as well as high-ranking Government officials and leaders, to appear before the Commission for interrogation, to get inspection permission at the police custody or prisons, military barracks, to have lawful authority to confiscate structural facts and testimonies from the inspected houses or areas, to conduct exhumation without prior notice, to obtain official cooperation during the course to ensure security of entire proceedings including offices and officials, victims, survivors and witnesses (For the complete papers, please follow the link http://www.scholink.org/ojs/index.php/wjssr/article/view/990/1142 or http://www.scholink.org/ojs/index.php/wjssr/article/view/604 for English and language in https://nagariknews.com/news/46328/ for Nepali).

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NOTES:[4]

[1] Comprising  Saliya Peiris (head), Jayatheepa Punniyamoorthy, Major General Mohanti Antonette Peiris, Dr Sriyani Nimalka Fernando, Mirak Raheem, Sumanasiri Liyanage and Kanapathipillai Venthan as members

[2] two from the Office of the President, one from the Government, one from the Assembly, and five from civil society

[3] a contemporary of Hitler and Mussolini

[4] http://www.ohchr.org/EN/HRBodies/HRC/CoIEritrea/Pages/commissioninquiryonhrinEritrea.aspx

________________________________________________________

Bishnu Pathak is a Senior Commissioner, Commission of Investigation on Enforced Disappeared Persons, Kathmandu, Nepal. Pathak is a Ph.D. holder in conflict management and human rights, president and director of the Conflict Study Center. He is a Board Member of TRANSCEND International for Nepal and also a BM of the TRANSCEND Peace University. Besides writing the book Politics of People’s War and Human Rights in Nepal, he has published a number of research articles on issues related to Human Rights, UN, Security, Peace, Civil-Military Relations, Community Policing, and Federalism. E-mail: pathakbishnu@gmail.com

 

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12 Responses to “World’s Transitional Justice Ironically Ensures Freedom to the Perpetrators Further Limiting Justice to the Victims”

  1. Bandana Rana says:

    Thank you for sharing Professor Pathak

  2. Omni Acharya says:

    I have copied your valuable Executive Summary and gone through. I have learned and noted properly.
    Thanks.

  3. Bal Kumari Gurung says:

    Thank you for sharing this paper. Do keep us informed about your work too as always.
    All the best.

  4. Rebat Kumar Dhakal says:

    Glad to see your article appear on Transcend Media Service. Congratulations!

  5. Bleeker Mô EDA BLK says:

    Thanks very much dear Bishnu !

  6. Chhatra Amatya says:

    Thank you for sharing your article.
    Congratulations for the 125th publication.
    I will circulate it to the relevant recipients.

  7. Bihari Krishna Shrestha says:

    Thank you, Prof Pathak for kindly sharing your Transcend article on transitional justice. While you mention that the Nepal approach to the issue of disappeared would be a model one by world standard, the problem is that the whole process is taking too long a time. It would make less sense if Prachanda and co. were to be tried when they are at their deathbed due to oldage like Cambodia’s Pol Pot. It is so painful to see that he is living such a life in luxury that came his way from the blood of 18,000 innocent human being whom they slaughtered on their way to power. Besides, they have had Indian enablers. Without the latter they would never have been able to perpetrate that atrocity.The scope of our TJ approach does not seem to extend that far. If this deficiency is the rest of the international template of TJ prescribed to Nepal, steps should be taken at the international level to get it further enriched. The known Indians, SD Muni, Gen Mehta, Yechury, Shaym Saran,and of course, the then PM Bajpai should all be drawn to stand trail. That alone would befit the essence of the term, Justice.

  8. DR. JAYAHARI PANDEY says:

    Thank you for sharing!
    Enjoyed it!
    Congratulations on such a fine written articulation!

  9. RJBurrowes & AMcKone says:

    Many thanks for another fine paper.

    I continue to appreciate your research and efforts.

    Warmest regards my friend

  10. Telegraph Nepal says:

    Thanks . Received your article and read with interest. However, the problem is that the references are more than one full article. Can you ignore it and send me a photo of yours so that we can be of some help to you if you so desire?

    And let me have a chance to , if you can, know about you and your expertise sir?

  11. Didi Anandarama says:

    Satya stands for benevolent truth when words do not camouflage or shroud truth and justice for vested interests. We live in the age of disclosure to bring about a new governance of benevolent leadership… one has to adopt the old/ false/imperialistic or the real/benevolent/new thing not to stand as a hypocrite serving with self interest… The field of politics has not yet demonstrated justice and benevolence… humanity is getting impatient…

  12. Professor Bishnu Pathak says:

    Thank you so much to you ALL