Engendering transitional justice: Obstacles and the way forward

transitional justice - conflict-affected women
Photo by Kalea Morgan on Unsplash

Nepal’s armed conflict (1996-2006) has brought multifaceted problems in the lives of conflict-affected individuals, particularly women who endured sexual violence in the time of conflict and the families of those who disappeared.

Following the peace agreement between the  Maoist party and the Nepal Government, Nepal embarked on an endogenous-driven peace process. Setting the examples for other nations grappling with similar challenges our political leaders came together, although there was participation of male leaders only with zero participation of women from the negotiation table to the signing of the peace agreement, gave way out to Nepal from brutal armed conflict. 

It is also noteworthy to recognise that Nepal’s peace agreement does not remain in the paper only if we analyse the tangible achievements such as announcing Nepal as a republican federal state, a secular country, the abolishment of the monarchy, and the successful army reintegration.

However, there have been notable missing links and shortcomings, particularly mainstreaming gender perspectives/inclusivity and effectively implementing the peacebuilding process which includes the transitional justice process as well.  So what are the obstacles to peacebuilding and the transitional justice process? And what are the potential pathways to expedite these processes through a gender lens?

Political context of peacebuilding process and transitional justice

Then Prime Minister Girija Prasad Koirala and Maoist leader Pushpa Kamal Dahal sign the Comprehensive Peace Accord that aimed at delivering transitional justice in Nepal following the Maoist war, in Kathmandu, in November 2006.
File: Then Prime Minister Girija Prasad Koirala and Maoist leader Pushpa Kamal Dahal sign the Comprehensive Peace Accord that aimed at delivering transitional justice in Nepal following the Maoist war, in Kathmandu, in November 2006.

The political backdrop of Nepal’s peacebuilding process and transitional justice establishment reveals significant flaws. Despite interim relief support to conflict-affected communities under the Citizen’s Relief, Compensation, and Economic Assistance Procedure, 2009, the patriarchal attitudes and gender mainstreaming gaps led to women who experienced sexual violence being excluded as conflict victims.

Leaders from both warring parties, now in power, intentionally disregarded sexual violence issues. They wanted these issues to be silent and as a result of this silence, women survivors feel betrayed and marginalised. This has also led women to lose hope in rebuilding and reclaiming their lives due to the absence of support mechanisms from family/community and government mechanisms.

Another factor contributing to the gap in the peace process is the significant delay in implementing transitional justice mechanisms. Despite Article 5.2.5 of the peace agreement mandating the establishment of such mechanisms within six months, and Article 5.2.3 promising disclosure of the whereabouts of the disappeared individuals within 60 days, it took eight years to establish the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Disappeared Persons (CIEDP) in 2014 under a flawed TRC Act. To date, there is still no information provided regarding the whereabouts of disappeared individuals from the conflict era.

There is a noticeable lack of accountability/willingness and realisation of urgency among the government and political parties in addressing human rights violations of the armed conflict era. Despite Article 7.1.3 of the peace agreement emphasising the commitment to impartial investigations and the rejection of impunity, this mandate remains unfulfilled amidst the power dynamics of political parties.

The effective implementation of transitional justice has consistently been stalled, becoming a bargaining point for political power. Over nearly nine years since the formulation of transitional justice mechanisms, victim communities have faced false promises from ruling governments and political leaders.

Despite directives from the Supreme Court and recommendations from victims, civil society, and the Human Rights Council for transparency and autonomy, political parties have shown no willingness to amend the transitional justice bill. As a result, perpetrators of gross human rights violations escape from punishment, while victims continue to suffer injustice and fear, with many losing their lives.

Nepal’s transition to democracy has weakened due to the manipulation of the language of justice by political leaders, resulting in institutionalising impunity at various levels with widespread corruption and compromised rule of law. In addition, judicial independence and the transitional justice process are also not immune from political interference, which exacerbates impunity and undermines democratic consolidation.

Disguised democracy

democracy picpedia and presidential system

While Nepal transitioned into a state of democracy and political restructuring with three-tier governance, it has fallen short of consolidating democratic practices. The measure of democratic success lies in citizens’ fearless embrace of these practices and their sense of dignity in daily life. The government and political parties could have played a significant role in establishing credible, effective, and efficient institutions at all levels of governance, showing their commitment to democratic principles and addressing past human rights violations, impunity, and structural violence.

However, even after 18 years of peacebuilding, conflict-affected communities, especially women subjected to sexual violence and families of the disappeared, continue to face marginalisation and injustice. A culture of impunity prevails, eroding public trust in democratic institutions, with top political leaders remaining unpunished for corruption, gross human rights violations during the time of armed conflict, and, other crimes in recent years.

This cover-up democracy has undermined the credibility and independence of crucial institutions such as the judiciary, transitional justice mechanisms, and human rights commissions, perpetuating a cycle of impunity and hindering genuine democratic progress.

Lack of community safe spaces and intervention for reconciliation

In this lingering peacebuilding and transitional justice process, there is a consistent absence of safe spaces in both communities and government structures where women affected by the armed conflict can share their experiences, heal, and foster a sense of collectivism and belonging. Such spaces could facilitate individual and community reconciliation, yet discussions on the impact of conflict on women rarely occur.

Consequently, unaffected communities remain unaware of the past and the resilience of women during dark times. Patriarchal structures further isolate women, especially survivors of conflict-related sexual violence, as societal norms stigmatise their experiences, leaving them in a state of internal and external polarisation and unable to openly discuss their trauma for fear of societal repercussions.

Previously, there existed a Peace Ministry and Local Peace Committees at the district level. However, with the restructuring of the state, these structures have been dismantled. This removal has left conflict-affected communities feeling a loss of ownership over infrastructures that once provided them with a sense of belonging and empowerment.

Liberal peace and structural/cultural violence in Nepal

Nepal is sticking to liberal peace by failing to address the deep-seated structural issues underlying political and socioeconomic transformation and conflict management, as outlined in Article 3 of the Comprehensive Peace Accord.

Women affected by the armed conflict continue to endure daily discrimination and injustice. While political reconciliation has occurred, individual reconciliation remains elusive, eroding trust and unity within conflict-affected communities and families. Political leaders have prioritised power games over addressing structural violence, distorting the true experiences of women in national narratives.

Yet, Nepal remains in a state of negative peace, lacking rule of law implementation, accountability for past human rights abuses, and perpetuating gender hierarchy, injustice, and discrimination. The absence of safety nets and pervasive violence have led to social breakdowns, particularly affecting women who experienced sexual violence or had family members disappear during the conflict.

A lingering lack of belonging and entrenched mistrust persists among these individuals. The state and political parties primarily directed their efforts towards institutionalising policies, plans, and physical peace infrastructures, neglecting to address the structural issues and the challenges faced by women from the conflict era. This oversight has fostered a culture of impunity within the country.

Patriarchy persists

The deep-rooted systemic patriarchy in our society is evident across decision-making bodies, from family and community to national institutions, predominantly led by men. While the Maoist movement aimed to dismantle class and gender hierarchies, the resurgence of male domination in powerful political institutions is apparent including the Maoist party.

Male leaders from various political parties are controlling powerful institutions, often distorting the narratives of women’s suffering during armed conflict to serve their vested interests. Those in power resist giving up control and disregard the voices of the powerless, especially women who face conflict-related sexual violence.

Acknowledgement and Recognition

The failure to acknowledge and recognise the contributions of women affected by the armed conflict is a significant shortcoming in transitional justice.

In Sierra Leone, the president publicly apologised for the suffering, women endured during the conflict, paving the way for a different approach to transitional justice. Those responsible must have the courage to apologise. Such acknowledgements could restore a sense of dignity to some extent.

No priority in dealing with the physical and mental wounds

Women who endured brutal torture and long waits for disappeared family members suffer from various cycles of physical and mental suffering, including sleep disturbances, headaches, restlessness, urinary issues, back pain, memory loss, anger, hopelessness, sadness, lethargy, appetite loss, isolation, severe mental distress, and diminished confidence. These challenges not only affect the women themselves but also ripple through their families and friends, inflicting societal trauma. Without adequate support mechanisms, women further disempower themselves psychologically and socially.

Long-term medical and psychosocial support is imperative, with the state bearing responsibility for addressing these needs unconditionally. Many women are also raising children single-handedly, having been ostracised by family members upon disclosure of their experiences. These children require educational support and psychological support to overcome transgenerational trauma and resentment. The state and relevant stakeholders must intervene promptly to safeguard the future generation of the country.

The way forward

The pursuit of justice centres upon providing explanations and information to victim communities regarding the truth of their loved ones who were killed or disappeared during the conflict, delay any more. Delay in uncovering the truth about conflict atrocities prolongs the suffering of victims, necessitating a holistic approach beyond traditional transitional justice pillars. Holding perpetrators accountable, especially for gross human rights violations is imperative for its progress.

Many perpetrators continue to live in the communities of victims, holding positions of power, that demand attention to reduce the environment of fear and for the psychological well-being and security of the victim’s communities. Yet, there has been a lack of significant action to address the trauma and physical wounds inflicted by the warring parties, hindering the reconciliation effort within individuals and communities, which required utmost priority for the intervention to save individuals and communities going through the state of polarisation within and outside.

Urgent amendments must be made to transitional justice bills by Supreme Court directives and many genuine recommendations provided by victim communities, civil society, and the international community to revitalise the stalled process.

Furthermore, preserving the experiences of conflict victims, particularly women, is essential to prevent distortion and ensure past injuries are acknowledged and addressed. Promoting accountability through public apologies and by actors who were involved in the conflict is crucial for comprehensive reconciliation. Transparency through media communication is vital in keeping the public informed and involved in this critical endeavour of the process of transitional justice process to understand the history and to develop the understanding of ‘Never Again to Violenceand for sustainable peace in Nepal.

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Risal is the CEO at Nagarik Aawaz.

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