ICTJ in the News

November 26, 2007

Past injustices should be dealt properly’

The Kathmandu Post

Patrick Burgess is Asia Director of the New York-based International Center for Transitional Justice (ICTJ). He was in Nepal recently to hold discussions with various stakeholders and government officials on issues related to transitional justice. Burgess took time out of his busy schedule to talk to Kiran Chapagain of The Kathmandu Post on issues relating to transitional justice. Some excerpts from the interview follow.

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Question: What is the purpose of your visit to Nepal?

Patrick Burgess: I am currently here to meet the ICTJ staff and to see how ICTJ can help Nepal's transition. In addition, I met with government officials, lawyers, civil society leaders, UN and donors here.

Q: What are the ongoing activities of ICTJ in Nepal?

Burgess: In Nepal, until now we have been focusing on a research project together with a local partner, Advocacy Forum - trying to gather accurate information about victims' feelings, their perceptions, their role in peace negotiations and reparations. We hope this research is helpful to all the stakeholders to formulate their policies and activities in a more accurate manner. Similarly, the research will also provide information for our next steps.

We are now holding consultations with the stakeholders on justice issues. In August, we brought some international experts from South Africa, Sri Lanka and Peru to share their experiences on transitional justice issues and the lessons they have learned in their contexts.

Q: Based on your experience in different countries emerging from conflict, how important is it to address issues of transitional justice?

Burgess: Our experience is that unless the challenge of accountability is faced, there is a likelihood that issues related to the past will threaten future stability. For this reason, we believe that there is a need for these past injustices to be dealt with properly. Even though it is difficult to deal with the past, it is necessary for sustainable peace and development.

Q: Your office is in Nepal and since August you have been closely following Nepal's efforts to address issues related to transitional justice. What is your observation of the efforts so far?

Burgess: In some ways, I am encouraged by the various stakeholders who are engaged in the issues of transitional justice and by their willingness to learn from other countries coming out of conflicts. Nepal is in a fragile state, so some caution should be taken.

Q: How important are the issues of transitional justice in a peace process?

Burgess: Issues such as truth, reconciliation, justice, amnesty and reparation are very complicated. Our experience is that unless truth is available, policies will be based on an understanding which is not accurate. In this situation, the past is not actually left behind. It comes back again and again to cause problems. It is better to take the very painful and challenging road to the truth so that it can be settled and a country can move forward. All other issues related to transitional issues will be based on the truth which is uncovered.

Q: What are the mechanisms that Nepal should adopt to address issues relating to transitional justice?

Burgess: Institutions developed by the government to deal with peace-time issues are not designed to deal with extraordinary circumstances of mass human rights violations and transition to peace. That is why different mechanisms are required to deal with transitional issues. When the transition is fully completed, which will take some years; some of those institutions are no longer needed. For instance, there have been more than 30 Truth and Reconciliation Commissions (TRCs) in various countries in the world. Each commission took place in countries moving from a situation of violence and conflict to peace.

Although each commission was different to the others, each contributed in a unique way to the relevant transition. That is why TRCs are established. It is a good idea to try and learn lessons and take account of mistakes which were made in other countries.

Similarly, other mechanisms of transitional justice include a number of tools which are used to help the transition. These include special courts and laws to deal with prosecutions. For instance, in some countries, hybrid courts are set up. In such courts, international experts, judges, sit along side national judges to make decisions together.

Transitional justice mechanisms also include fully international courts which deal with conflict issues like in the former Yugoslavia and Rwanda. The issues surrounding the international criminal court, which a majority of countries have joined, is another tool.

Various types of TRCs, depending on the context, are also tools. Although these are different from country to country, they share some common characteristics. For example, it is important that the commissioners who are chosen be independent human rights experts, so that the work and final report of the commission will be accepted by all the parties. Otherwise there is the danger of the Commission being viewed as a political exercise, and its work may not be effective or accepted.

Q: Will transitional issues affect the peace process if they are not addressed properly?

Burgess: The peace process is a very complex issue, and as an outsider I don't want to comment on it except to say that I hope that the situation remains stable and the peace remains strong. It is important that there is a stable basis on which various efforts aimed at addressing the past are placed. Our experience shows that the efforts to address the past will strengthen sustainable forms of peace. But of course, everybody involved is aware that we need to be careful and act in a wise manner.

Q: What is the international practice of addressing issues of transitional justice that can be useful to Nepal?

Burgess: It is common for issues of justice to be made part of peace agreements. However, it takes time to implement those agreements. Agreeing on the right timing and the form that transitional justice mechanisms should take in Nepal will take some time, and these decisions need to be taken carefully, based on full consultation with all the stakeholders. It is very important that all the parties involved feel that they hold some ownership of these mechanisms. If this happens, they will support the process and results, rather than standing outside feeling alienated and critical. In the meantime, there is a great opportunity to learn more about transitional justice issues. Our experience shows that those issues will remain relevant for many years after the transition. That is why our organization ICTJ assists the government and civil society over long periods in many countries around the world. This assistance needs to be sustained for some years.

Q: The Nepal Government had floated a draft of a TRC which had an amnesty provision. What do you think about the proposed provision?

Burgess: Many people believe that TRCs often have an amnesty provision. In fact, that is not true. Out of more than 30 TRCs, only the South African TRC had the potential to provide full amnesty to individual perpetrators. We also provided some comments to the government regarding the TRC bill. I spoke with government representatives this week and told them that our organization is available to provide specialized assistance to the government on this issue, if that would be helpful.

Q: What model of transitional justice do you think would be best suited to Nepal?

Burgess: Our experience is that a range of tools provide assistance in dealing with transition. Accountability is important so that the population maintains a strong belief in the justice system and rule of law. Truth is important so that we can learn lessons from the past and clear up false perceptions. Therefore, we are able to recognize similar problems when they arise in the future and take steps to avoid them. Truth also honors victims and provides a basis for reconciliation. International law provides victims with a right to reparations. Reparations are important to honor victims and help them to build a new future. Vetting of perpetrators is important so that they do not continue to hold positions of authority and therefore lower the confidence the people have in public institutions.

Q: Will the existing judicial system and laws be adequate to address issues related to transitional justice?

Burgess: There are many issues of law which usually need to be solved in a transition. Some new laws may need to be drafted. Some procedural aspects may not be suitable to deal with mass violations. Nepal has the opportunity to learn from many other countries' experiences, which may help it to deal with its own unique experience.