Justice and deterrence

DR GYAN BASNET

A few months ago, the major political parties agreed to table a draft bill to establish a Truth and Reconciliation Commission (TRC). However, since then there has been silence, and still we have failed to punish the perpetrators of 18,000 deaths and hundreds of disappearances. A recent Amnesty International report on Nepal proves those facts stating: ‘drafting of a bill to create the TRC had yet to be completed and the government had yet to set up a commission to investigate thousands of enforced disappearances by parties to the conflict between 1996 and 2006.’ Why? Are there any bigger values than justice? Indicting those responsible for such heinous crimes against humanity cannot, of course, make restitution to any of their victims, but the very indictment and sentencing of those accused is a minimal act in defence of the universal values of human rights and fundamental freedom. The pursuit of justice

must be seen as an absolute and non-negotiable necessity. It is essential in order to establish the rule of law and to prevent any future cycle of violence.

Within the past few weeks, we have seen numerous strikes and violence. Such nationwide protests demanding ethnic federalism and opposing it at a time when the country is being restructured

can destroy the social

harmony that so happily exists between the various communities throughout the country.

The strikes have widened the rift between the different groups and added fuel to the fire. If this style of protest continues, it could promote full-scale inter-ethnic division and incite yet further violence. It could even develop into communal violence for which our society may pay a huge price if we do not act with care now. The on-going violence in the name of identity indicates that if we are not careful we may yet be plunged into a worse

crisis than even in Rwanda. History shows that communal violence is most costly for any society.

We have already delayed too long the establishment of the TRC and the consequent punishment of those responsible for ten years of civil conflict. Had we already done this, there would have been a clear lesson for any who might at present wish to incite violence in the country. We may have misread the lessons of history: interest in the pursuit of justice does not necessarily wane with the passage of time. Over a few decades around the world, there has been a noticeable increase in cases aimed at correcting past injustices.

There have been persistent calls for apologies, reparations — indeed, any means of settling accounts for past sufferings. Examples may be found in Peru, South Africa, Argentina, Sierra Leone and Kenya. Justice may have been delayed, but in the end it has triumphed.

An International War Crimes Tribunal was set up in Arusha, Tanzania, to try the leaders of the genocide in Rwanda. The special court of Sierra Leone last month convicted Charles Taylor, the former Liberian dictator, of war crimes. The indictment of the former Liberian President alongside prompted immediate discussion about the possible impact such action might have on peace negotiations and on the stability of the regime.

It is vital then that Nepali leaders, heads of the armed forces and others bear in mind that there is no easy escape route available to them if they can be shown to be responsible for acts of gross rights violation whether in the past, currently or in the future.

Inciting violence that is capable of damaging the social fabric of the nation that causes harm to others, and that leads to mass killings in the future is a crime in international human rights and humanitarian law. Those people who indulge in such activities should bear in mind that there will be no escape for them at the end of the day. Even if our own national judicial system fails, the world and international community will nevertheless be watching us. Crimes against humanity, genocide and war crimes are not accidents of history. Any leader or individual, who orders or incites communal violence, in the name of ethnic and racial division, will one day be held responsible for rights violations such as genocide and crime against humanity.

Deterrence is a long-term project. Now the proposed TRC must become operational as soon as possible: its existence must act as a powerful deterrent against future inhumane acts by any individual, group or organization in the country. Justice is crucial for its

purported capacity to prevent and to deter future crimes on a grave scale. They must always be opposed. Nothing can ease the scars and pains of war.

However, the TRC must also be the vehicle by which victims can be reconciled and recover from past harm. It must be the means of dialogue between victim, perpetrator and society as a whole. We must ratify the Rome Statute of the International Criminal Court in order to ensure that there is no repetition of recent human rights violations. This initiative is essential for sustained peace: it can play a critical role in deterring conflict. Those who then commit violations can have no excuse: they should therefore be shown no mercy. If national mechanisms fail to bring the perpetrators to justice, an international mechanism and jurisdiction must be accepted.