With the adoption of the "Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 (Third Amendment) Bill", has brought rays of hope to the resumption of the stalled transitional justice (TJ) process in Nepal. It aims to officially end the remanence of conflict and introduce a path to sustainable peace and non-repetition of violence.

The ten-years long conflict (1996 – 2006) has caused millions of worth physical, emotional and mental losses, including human lives and development infrastructures. A non-governmental human rights organization, Informal Sector Service Center had documented that a total of 13,248 people were killed during the period of a decade long conflict since February 1996, which includes a total of 7,905 incidents by the state, and 5,343 number of incidents committed by non-state actors, the then CPN-Maoists rebels. Similarly, the whereabouts of 824 people were still found disappeared with the involvement of the state, and other 108 incidents occurred by the non-state actor. Similarly, a total of 1,334 people are recorded as missing persons from the period of conflict in accordance with the International Committee of the Red Cross.

According to the NHRC, more than 1300 people are believed to be disappeared throughout insurgency period. However, the NHRC has confirmed 933 cases of disappearances, while it has registered 3,300 complaints about disappearances. Similarly, it is reported that a total of 3288 cases of disappearances are registered in the Commission of Investigations on Enforced Disappeared Persons (CIEDP) and over 63,718 cases are so far registered in the Truth and Reconciliation Commissions (TRC) seeking for justice and reparation for their losses.

Despite differences of political actors, this unexpected understanding has brought excitement to majority of its stakeholders, including victims and opened a path to reduce the uncertainty of longstanding issues of injustice. However, there are still ongoing confusions and dilemmas among the victims of conflict towards its proper enforcement of the law because of partisanship and political biasness. Therefore, the satisfaction of victims on its process and outcomes must be recognized and implemented the law accordingly. This acceptable atmosphere can be created through credible process of transitional justice and victim-centric approaches, while enforcing to it. However, such process should be initiated within parameters of the 2006 Comprehensive Peace Agreement (CPA), and the February 2015 Supreme Court verdict, and the August 2024 amended law, as well as international standards of truth, prosecution, justice, reconciliation and non-repetition.

Political parties have quarreled for nearly eight years period for the adoption of the TJ process until the adoption of the law in May 2014, and the commissions were formed in February 2014. Even the CPA envisioned for a single commission, political parties agree to form two separate commissions- CIEDP and TRC with separate mandates of investigations on missing persons, and ensure justice and reparation to the victims of conflict.Both the law and formation of commissions were outrightly rejected by national and international stakeholders, including victims demanding the participation and ownership in the TJ process. Despite outcry of its stakeholders, the government formed commission in two occasions in February 2015 and January 2020. Both commissions failed to deliver its mandate, and lost its credibility and existence.

With recent political consensus for the amendment of the 2014 legislation, it can be assumed that TJ process, which remains as an integral part of the CPA, is heading towards meaningful conclusion. The parties to the government, Nepali Congress and CPN (UML) and the opposition party, the CPN (Maoists Center) agreeing on contentious issues, including the definition of human rights violations and serious human rights violations, requiring the consent of victims for reconciliation, broadening the scope of reparations and establishment of separate reparation fund, expanding the jurisdictions of compensation incorporating families of security forces and disqualified combatants, compromising on sentencing provisionthat contradicts with the country's October 2017 Criminal Code, transfer of cases to the Special court,removal of the statute of limitation, extending timeline for the registration of complaints on the rape Cases, which are under hearing in the District and High Courts,the stalled transitional justice process is expected to move forward without interruption, and hopefully, justice to victims is assured through prosecution, justice and reparation.

The amendment of law has certainly brought excitement to political parties and its stakeholders. Most of its stakeholders, including victims have welcomed the political consensus and political parties have overwhelmingly supported to the amendment of law. It is also broadly hailed by international community, including the UN Resident Coordinator in Nepal Hana Singer-Hamdi, US Ambassador Dean Thompson, EU Ambassador Veronica Lorenzo and the Swiss Ambassador Dr. Danielle Meuwly, as well as the Geneva based Office of the High Commissioner of Human Rights. Such a positive reaction from international community has certainly gained momentum of the Nepal's new development on TJ process. As a result, the commissions will receive international cooperation and support, including financial. But cooperation and support will basically depend on the implementation of the Act and the appointment of its commissioners.

Even though the political actorshave demonstrated its irresistible support, there has been immense doubts raised by some of the victims' groups about the amendment of law and the intention of political actors. They continue believe that the law intends to grant amnesty to perpetrators rather than ensuring justice to victims. It has been echoed by some noted international human rights groups, including the Amnesty International, Human Rights Watch and International Commission of Jurists. These groups have mainly raised their concern on the definition of 'violations of human right' and 'serious violations of human rights' and the reduction of sentencing against the alleged perpetrators compromising values and norms of serious criminal offences. They claim that the amendment of law continue favors immunity to perpetrators instead of justice to victims.

The law has undoubtedly gained political and legal legitimacy. However, it is going to be an ongoing battle for the commissions to acquire public legitimacy and gain trust of victims. It depends upon the commission's competency and its performances. In addition, the government and the political parties involved in the peace process will face additional challenges in making the long-delayed TJ process, credible and transparent, andwin the 'soul and mind' of the victims.

The fact that the country's TJ process is plagued by partisan politics from its inception, while the commissions are unlikely to be result-oriented in a situation where party politics is considered dominating factor in every sector of life. For example, two previously constituted commissions are failed to deliver its objectives of truth and justice due to its competency and partisanship nature. It has rather fueled to increase distrust and division among the victims. The failure of these commissions is partly arisen due to legal complications, but were mostly engulfed by the competency of the commissioners, and their understanding about theTJ. It means that the effectiveness of TJ process will mostly depend upon the transparency on selection of the commissioners. The competency of the commissioners is a key to protect the integrity of the CIEDP and the TRC.

It is obvious thatnature of TJ process is known as a combination of political, judicial and peace-building. It varies depending nature of conflict and peace process, and the country's post-conflict political situation and 'power dynamics.' It also depends upon the country-to-country, and there is not a universal standard of its structure and mandate that fits to all. Therefore, this process must be handled in a combined process of truth, prosecution, reconciliation and non-repetition.

According to Article 5 (2) (3) of the CPA mentions to disclose whereabouts of made 'disappeared' or killed during the conflict and also inform the family members about it within 60 days of signing of the agreement. Article 5 (2) (4) of the agreement envisions the establishment of a National Peace and Rehabilitation Commission. Article 5 (2) (5) of the agreement ensures the establishment of a High-level Truth and Reconciliation Commission with the aim to "probe about those involved in serious violation of human rights and crime against humanity in course of the armed conflict and develop an atmosphere for reconciliation in the society.

Even though the CPA aims for the formation of a single commission to address the TJ issues, the formation two separate commissions, was mainly a historical weakness, and strategic failure of the Nepalese peace process, which will continue to create practical complications on ensuring to justice and reparation for the victims in addition to confusions and duplications on roles and responsibilities. The only way to correct this weakness is to create a mechanism for effective cooperation and coordination, and the differences that may arise between jurisdictions can be easily resolved. It will help to reduce unhealthy competition between the two commissions. An important basis for creating conducive atmosphere surely relies on attitude, behavior and competency of the officials appointed to both commissions.

Another hurdle for the effectiveness of the commissions was noticed the lack of international support, including the United Nations and diplomatic community along with national human rights community and the victims because these commissions were formed without addressing theFebruary 2015Supreme Courtdirectives. The unwillingness of the government to amend the law created confrontation instead of collaboration between the commissions and its primary stakeholders has stretched the relationship with international community, including the United Nations. As a result, the commission could not meet the expectations of the victims and their stakeholders due to lack of national and international moral and expert support. In addition, they were failed to fulfill the expectations of political parties that recommended them for appointment.

Nepal's TJ process has become complicated since its inception and justice to victims have remain far away from reality. It has failed to gain public trust and legitimacy. In addition, the inability of the commissions to sort out legal, administrative and legislative challenges in a timely manner has created additional complexities for its functionality and meet the objectives of TJ process. Instead, it has forced the burden of additional suffering on the victims of the conflict. This has caused irreparable loss to the country's reputation at international levels. Furthermore, the ability of Nepali leadership was continue questioned on the issues of addressing TJ issues and concerns. Furthermore, the failure of handling TJ process has indirectly affected to receive foreign aid that is unquestionably required for the country's development.

Of course, law is inevitable for the success of TJ process. In addition, resources, including human, financial and logistic must be adequately provided to timely conclude produce comprehensive report related to transitional justicewith its recommendation of prosecution, reparation and institutional reform. Through this process, victims must be ensured justice, and the perpetrators must face consequences of their wrongdoingsas per the law. However, the credible process requires for the efficiency and effectiveness of transitional justice commissions envisioned by the CPA.

In this pretext, political actors must be sincere to address TJ issues and concerns that are conduced due process of law and international standards of human rights and justice. First of all, the role of the Attorney General is important. The law has entrusted the Attorney General with the responsibility of prosecuting cases as per the recommendation of the Commissions, which is legally appropriate and justifiable. However, since the Attorney General is a political appointee and also the Chief Legal Adviser to the Prime Minister, it is obvious to question about the fairness of the prosecution process. Also, the Attorney General, who are replaced with the change of government, may raise doubts about the continuity of subsequent decisions. Therefore, the government and political parties should be aware of the role of the Attorney General to be credible in the eyes of victims. For this, it would be wise to designate the Deputy Attorney General with full authority in the office of the Attorney General to handle prosecution of the perpetrators.

Secondly, the formation of the Special Court is another issue that raises doubts to the victims and its stakeholders, including international community. The system of appointing the Chairman and Members from the High Court Judges to the Special Court in consultation with the Judicial Council has complete legitimacy as per the legal norms. However, the judges to be appointed must be considered competent, knowledgeable and experienced on TJ issues in addition to the country's established criminal justice system. Otherwise, the victims are likely to be deprived of justice due to lack of competence and knowledge of the subject matter. The ultimate justice to the victims relies on the performance of the Special Court.

Thirdly, the appointment process of officials in the commissions should be transparent based on merit, efficiency and competency. Appointments to the commissions, which have been formed twice in the past, demonstrates that the officials were unable to deliver its mandate, sincerely and objectively as per the mandate of the CPA. Thus, TJ process has been put in jeopardy due to the tendency ofthe political actors to appoint people based on loyalty ignoring the essence of professionally independent and competent regarding the country's conflict and peace process. Such commissioners must be able to maintain high level of public integrity, credibility and acceptability. In addition, the commission should be inclusive and represent the country's diversities. Otherwise, transitional justice process can be viewed as isolated and dominated by political elites.

Similarly, public integrity and social acceptability are also essential component to consider while appointing the commissioners. Loyalty to party politics and certain political actors damages the integrity of the commissions. This means that the government should create a "Search Committee" to find appropriate people as part of supporting the "Selection Committee."Such participatory process can bring national flavor in the country's TJ process, andbe as organic in the world as the political leadership claims. Therefore, the appointment of credible and competent commissioners is vital to establish the TJ process as fair, credible and effective. If, despite hopes and expectations, a situation is created in which officials are appointed on the basis of political affiliation as well as nepotism and favoritism, transitional justice process will again be trapped in vicious cycle of whirlpool and the victims will continue to face injustice from the state.

In the end, bringing TJ process to a logical conclusion is a matter of prestige for the country, while it is both a necessity and a compulsion for political parties. But the victims absolutely need justice and reparation. The perpetrators must face consequences of their wrongdoings, and punished as per the law. It will help to establish truth of the conflict, and reduction of possible escalation of violence based on revenge. Therefore, an integrated approach of TJ process with the inclusion of prosecution, reconciliation, reparation and institutional reform, is an appropriate step to ensure justice to victims. But the outcome depends on the effectiveness, efficiency, reliability and functioning of the TJ commissions.

This is probably the last chance for the TJ process to be conducted by mutual understanding and for the peace process to be formally declared concluded, and peace and tranquility can be prevailed in the country. It will help to institutionalize the 'win-win' approach of the Nepalese process. In other words. failure of TJ process will be considered "failed peace process" which will continuebe ashamed the Nepal and Nepalese people in international community, and bound to answer the unresolved questions of injustice in international forums, while issues of victims'justice will remain forever unaddressed.

The writer is an expert on peace, security and human rights.