Transitional justice at the National Human Rights Commission of Nepal: challenging legitimacy, credibility, and effectiveness

ABSTRACT

In the past three decades, national human rights institutions (NHRIs) have becoming an increasingly common feature of transitional and post-conflict justice processes. As institutions designed to promote and protect human rights, they have been afforded a range of responsibilities, including investigating conflict-related human rights violations, assisting with the establishment and functioning of ad hoc mechanisms like truth and reconciliation commissions, and contributing to accountability. Drawing on evidence from the case of Nepal, however, this article demonstrates that engaging in transitional justice processes places NHRIs at considerable risk. It argues, in particular, that the political nature of transitional justice and compromises it inevitably entails can serve to jeopardise the legitimacy, credibility, and effectiveness of NHRIs. The article thus concludes that far greater consideration of the impact that transitional justice has on NHRIs and development of measures to protect their integrity in highly fraught political contexts is required.

KEYWORDS:

• Transitional justice
• human rights
• national human rights institutions
• Nepal
• accountability

Between 1996 and 2006, Nepal was gripped by a bloody civil war waged between government forces and Maoist insurgents. Driven by the Maoists’ belief that Nepal’s 1990s transition to democracy had not improved the lives of socially and economically marginalised sectors of society or abolished the monarchy, the conflict ultimately saw around 13,000 people killed, 1300 forcibly disappeared, and countless other human rights perpetrated.¹ Among the institutions responsible for monitoring the human rights situation was the National Human Rights Commission of Nepal (NHRC). Created in 1997 as a belated product of the democratic transition,² the NHRC was established during the conflict in 2000. Despite the challenging circumstances in which it became operational, it is widely credited with helping to expose ‘the brutality of the conflict’ and preparing ‘the ground for international interest in resolving the human rights crisis in Nepal’.³ That interest saw the inclusion of wide-ranging human rights commitments in the Comprehensive Peace Agreement (CPA) (2006) that formally ended the conflict.⁴ Among those commitments was an undertaking to respect and protect human rights, conduct ‘impartial investigations’ into allegations of abuse, ‘ensure impunity will not be tolerated’, and establish a high-level truth and reconciliation commission.⁵ For its part, the NHRC was afforded a formal role in monitoring the human rights provisions included in the agreement.⁶ With this, Nepal became one of a growing number of cases in which National Human Rights Institutions (NHRIs) have been engaged in transitional justice processes around the world.

Seventeen years on from the formal end of the civil conflict and more than two decades after its establishment, however, serious doubts have been raised over the legitimacy, credibility, and effectiveness of the NHRC. On 8 December 2022, the institution responsible for overseeing and accrediting NHRIs around the world, the Global Alliance of National Human Rights Institutions (GANHRI), recommended downgrading its accreditation status from A to B. At issue were concerns over the openness and transparency of the commission’s appointments process, its independence, and its ‘ability … to protect and promote human rights’ in Nepal.⁷ As GANHRI’s Sub-Committee on Accreditation (SAC) concluded, the NHRC was no longer in ‘conformity with the Paris Principles’, a set of internationally-recognised and agreed principles designed to ensure the credibility, legitimacy, and effectiveness of NHRIs.⁸ Although the SAC gave the Government of Nepal one year to gather sufficient evidence to demonstrate compliance with the Paris Principles (1991), commentators note that such evidence does not exist and suggest that downgrading is inevitable.⁹

This article traces the experience of the National Human Rights Commission of Nepal. It examines how and why an institution once lauded for its efforts to gather data on human rights violations and investigate human rights crimes during Nepal’s civil war, information without which transitional justice would not be possible in Nepal, has become increasingly viewed as untrustworthy, illegitimate, and ineffective.¹⁰ In doing so, it considers the wider implications of recent enthusiasm for mandating roles for NHRIs in peace agreements and transitional justice processes.

Since the early 1990s, NHRIs have become an increasingly common feature of peace agreements and peace processes.¹¹ With their common overarching mandate to protect and promote human rights, peacemakers have been drawn to the idea that NHRIs may play a critical role in ‘ensuring accountability and combatting impunity’ during peace processes.¹² To that end, peace agreements concluded in Bosnia, Sierra Leone, Northern Ireland, Afghanistan, and Nepal have included provisions establishing NHRIs or granting existing institutions formal roles in their peace processes. While many such agreements simply acknowledge that NHRIs play an important role in monitoring human rights, others afford direct and specific responsibility to NHRIs for ‘monitoring the human rights provisions contained in a peace agreement’ and for ensuring accountability for conflict related human rights violations.¹³ Together, these types of provisions have raised the further expectation that NHRIs will make a significant contribution to the delivery and realisation of transitional justice in post-conflict contexts.

As a growing body of anecdotal evidence seems to suggest, however, the ability of NHRIs to fulfil these expectations is far from assured. In response, a small body of work has begun to consider place of NHRIs in peace and transitional justice processes, noting both the contributions and potential risks associated with NHRI involvement.¹⁴ Much of this work has centred on the impact that NHRIs may have on peace and transitional justice processes and builds on the burgeoning literature on NHRI effectiveness and its measurement.¹⁵ Less attention has been paid, however, to the other side of the equation: that is, to examining the impact that peace and transitional justice processes may have on NHRIs. Thus, while recent studies have concluded that NHRIs may ‘do more harm than good’ in post-conflict processes,¹⁶ little consideration has been given to the possibility that involvement in transitional justice processes may do more harm than good to NHRIs themselves.

This article examines the impact of peace and transitional justice processes on the legitimacy and credibility of Nepal’s NHRC and, in doing so, considers the lessons that this case may provide for other NHRIs engaged in transitional justice processes. It argues that although they may make important contributions to the delivery of transitional justice by gathering evidence, investigating human rights violations, providing victim support services, and engaging in human rights advocacy, efforts to combat impunity and ensure accountability can also pose significant risks to NHRIs. As the case of Nepal demonstrates, in post-conflict contexts in which political compromises allow perpetrators of human rights violations assume or retain positions of power, NHRIs are especially vulnerable to political interference from powerful actors whose interests are not served by the pursuit of accountability. In that case, the pursuit of an anti-accountability agenda has seen persistent efforts by successive governments to curtail the independence of the NHRC, limit the scope of its activities, and steadfastly refuse to implement its recommendations. These actions have not only diminished the legitimacy, credibility, and effectiveness of the NHRC in engaging with transitional justice but impoverished its capacity to undertake routine human rights protection and promotion functions not specifically related to its post-conflict roles. The article concludes by suggesting that if NHRIs are to become common features of holistic transitional justice processes, further safeguards are required to protect their legitimacy, credibility, and effectiveness.

National Human Rights Institutions

NHRIs are administrative bodies ‘established by governments under the constitution, or by law or decree’ and which are specifically designed to promote and protect human rights.¹⁷ Established to serve as ‘a bridge between international human rights standards and their implementation at the national level’, they are instituted by the state but, crucially, are independent of the state.¹⁸ While they operate ‘at arm’s length from the Government’ and routinely investigate complaints against the state, they wholly or primarily rely on governments for their funding.¹⁹ Although their mandates vary considerably, the core functions and guiding principles of NHRIs are outlined in the Paris Principles, drafted at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in 1991.

The Paris principles

Reflecting the variety of forms and mandates they assume, the Paris Principles do not define NHRIs but characterise them by simply noting that ‘[a] national institution shall be vested with competence to promote and protect human rights’.²⁰ Among the broad functions they envisage for NHRIs are responsibilities for:

advising and making recommendations … on any matter concerning human rights; promoting harmonisation of national law and policies with international human rights obligations; encouraging ratification and implementation of international human rights treaties; contributing to State reports to international and regional human rights mechanisms; cooperating and engaging with international and regional human rights mechanisms and NHRIs; promoting research on and teaching of human rights, and; promotion generally of human rights values and standards, through public awareness and education programs and activities.²¹

The most specific articulation of the intended activities of NHRIs come in the form of the Paris Principles’ assertion that NHRIs must have adequate powers to initiate inquiries and investigations, take evidence, obtain documents and information, make public statements, publicise reports, findings and recommendations, undertake consultations, and cooperate with other state institutions, including courts, and with NGOs.²²

The key objective of the Paris Principles is to ensure that NHRIs are legitimate, credible, and effective. Institutional legitimacy can generally be understood as the perceived authority that an institution possesses to perform its functions. The legitimacy of an NHRI is thus a function of the laws that establish its mandate and the legislation under which it operates. In more expansive terms, however, institutional legitimacy can be assessed across three dimensions: (i) the legitimacy of its establishment, conceived in terms of its governing legislation, mandate, and composition; (ii) the fairness of its procedures and decision-making processes; and (iii) the legitimacy or fairness of its outcomes. Closely related, institutional credibility refers to how institutions are perceived by society: that is, whether they are trustworthy, fair, and perform their intended functions.

Given the degree of overlap between the factors that contribute to the legitimacy and credibility of NHRIs, the Paris Principles do not distinguish between these goals but rather provide a set of rules and principles to guide their establishment, composition, and methods of operation. At their heart are three basic principles: independence, pluralism, and a mandate that is ‘as broad … as possible’.²³ The Paris Principles specify that independence is to be established and protected through legislative or constitutional guarantees, by the provision of adequate infrastructure, resources and funding to carry out its work, ‘enable it to have its own staff and premises’, and to ‘not be subject to financial control which might affect its independence’, and through the operational freedom to ‘consider any questions falling within its competence’.²⁴ Serving the demands of both pluralism and independence, the Paris Principles also specify that NHRI appointments must be made ‘in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights’.²⁵ In short, the Paris Principles indicate that a legitimate NHRI is independent, in legal, operational and financial terms, and in terms of the activities of its members, that its composition is pluralist, and that its mandate is broad enough to allow it to consider all human rights issues within its jurisdiction. Its credibility is established by ensuring its appointments are representative, its operations are independent, and it has the capacity to engage in its intended processes and achieve its intended outcomes.

The Paris Principles also form the basis on which the accreditation and re-accreditation of NHRIs is undertaken by GANHRI. Administered by the SAC, accreditation is based on peer-review evaluations of whether institutions are in ‘compliance with internationally recognised standards … to ensure their independence, pluralism, and accountability’.²⁶ Thus although it was not their original intention, the Paris Principles have become a set of ‘benchmarks against which proposed, new and existing NHRIs can be assessed’.²⁷ By the end of the 2022 review cycle, 89 NHRIs were deemed ‘fully complaint with the Paris Principles’ and granted ‘A’ status, while 31 ‘partially compliant’ institutions were awarded ‘B’ status.²⁸

Underpinning the accreditation process is the assumption that compliance with the Paris Principles not only establishes an NHRI’s legitimacy and credibility but is indicative of its effectiveness. This is not an unproblematic assumption as even states with ‘indisputably high level[s] of human rights violations’ may have NHRIs that are fully compliant with the Paris Principles.²⁹ Despite this criticism, however, the idea that compliance with the Paris Principles ‘will probably increase the likelihood that an NHRI will be responsive and effective’ is incredible pervasive.³⁰ At the very least, the GANHRI accreditation process is a useful barometer, indicating where NHRIs have improved their performance and, in particular, highlighting areas of deterioration. To that extent, downgrading from A to B status may in fact provide a more significant measure of NHRI performance than reaccreditation as an A institution.

The rise of NHRIs

While fewer than twenty NHRIs were in operation before 1991, by the end of 2022 more than 120 were in existence.³¹ This rapid spread was inspired by the codification and endorsement of the Paris Principles and coupled with three broader trends in global politics. The first, which began in the 1970s but gathered pace in the 1990s, was the so-called ‘third wave’ of democratisation, which saw more than 60 countries transition from authoritarian rule to democratic regimes. For states drafting new democratic constitutions, the Paris Principles provided a ready and well-accepted guide for the institution of human rights protections; NHRIs became ‘a fairly standardised model to be borrowed, adapted, and transported across borders’ and became an increasingly common inclusion in new democratic constitutions.³²

The second broad trend saw the rise of the ‘good governance’ agenda in the 1990s. Primarily pursued by the World Bank, United Nations Development Program (UNDP), and other development agencies, good governance was conceived as ‘the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights in a manner essentially free of abuse and corruption, and with due regard for the rule of law’.³³ Development agencies and institutions like the World Bank and UNDP thus tied the provision of development assistance, investment, and international loans to principles and practices of good governance.³⁴ In this context, the establishment of NHRIs provided a means of demonstrating the institutionalisation of the human rights aspects of good governance and contributing to the implementation of the three core principles of good governance, participation, accountability, and fairness.³⁵

Alongside its role in processes of democratisation and development, good governance was also viewed as important component of peacemaking and peacebuilding efforts.³⁶ To that end, the rise in NHRIs was also fuelled by efforts to address a third major trend of the 1990s and early 2000s, the spate of civil conflicts that extended from Africa to Europe, and Asia. During this period and into the 2000s, overlapping international human rights, peacebuilding, and good governance agendas saw NHRIs increasingly included in peace agreements as making ‘key contributions to democratisation processes, the promotion of respect for the rule of law, and the transition to durable peace’.³⁷ As Lacatus and Nash’s recent study demonstrates, of 126 peace agreements signed between 1990 and 2015, 99 made reference to NHRIs.³⁸ Of these, 73 included provisions for the establishment or creation of an NHRI as part of the post-conflict peace process. Among the specific roles assigned to NHRIs in these agreements, monitoring and reporting on the human rights situation on the ground, engaging in human rights protection, creating or implementing new legislation, providing specialised or local rights protections, advising government on human rights and peace, educating and informing communities about human rights, and promoting human rights featured most prominently.³⁹ In more general terms, the inclusion of NHRIs in peace agreements reflects acceptance of the idea that they ‘can play both a preventive and a restorative role’ in post-conflict situations.⁴⁰ With this, the place of the NHRIs in peace processes has also come to overlap with the ideals and practices of transitional justice.

National Human Rights Institutions and transitional justice

The rise of NHRIs took place in parallel with the emergence and establishment of transitional justice, as a practice and a field of inquiry. At its heart, transitional justice is concerned with addressing legacies of past human rights violations. Though initially focused on ‘legal responses’ employed by new third wave democracies to address the ‘wrongdoings of repressive predecessor regimes’,⁴¹ transitional justice is now understood as ‘a range of processes and mechanisms associated with society’s attempt to come to terms with a legacy of large-scale abuses in order to ensure accountability, serve justice and achieve reconciliation’.⁴²Among these processes and mechanisms are those designed, not only to provide accountability or redress for past abuses, but to guarantee the non-repetition of human rights violations through institutional reforms, the establishment of new human rights institutions, training and education programmes, and other measures.

While transitional contexts typically give rise to the sorts of temporary institutions that are most commonly associated with transitional justice, for example, ad hoc criminal tribunals and TRCs, they have increasingly involved the establishment or engagement of permanent institutions, such as NHRIs. As a Toolkit prepared by the UNDP and OHCHR noted, ‘NHRIs can play an important role in ensuring accountability and combatting impunity by documenting and investigating violations of international law’.⁴³ This too has helped fuel the inclusion of NHRIs in peace agreements which, in the past three decades have increasingly included specific transitional justice provisions.⁴⁴

Roles and responsibilities

Although NHRIs have increasingly become part of transitional justice processes mapped out in peace agreements, the specific responsibilities with which they are charged are often vaguely expressed.⁴⁵ In this regard, the Paris Principles are of little help: as they were not intended as transitional justice mechanisms per se, they do not specifically address the roles and functions of NHRIs in these specific contexts. In response, several regional NHRI networks have sought to define the roles, responsibilities, and limitations of NHRIs in transitional justice processes. In 2009, the Rabat Declaration, signed at the biennial conference of the Network of African National Human Rights Institutions (NANHRI) acknowledged the ‘important role NHRI … have been playing in transitional justice processes, in order to ensure accountability, serve justice and achieve reconciliation’ and agreed that their role ‘could be further strengthened’ by undertaking a range of tasks.⁴⁶

In 2010, the OHCHR identified a range of tasks NHRIs may perform within transitional justice processes including monitoring and reporting on the human rights situation, investigating human rights violations, handling complaints, gathering, documenting and archiving information about human rights abuses, and cooperating with national, regional, hybrid or international judicial mechanisms.⁴⁷ It noted that NHRIs can ensure accountability and combat impunity ‘by documenting and investigating violations and recording abuses both during conflict and during transitional periods’. These efforts, it continued, ‘can support future prosecution initiatives, truth-seeking and truth-telling bodies, reparations measures, and vetting processes’.⁴⁸

In 2015, the European Network of National Human Rights Institutions (ENNHRI) made a similar plea for NHRIs to:

Take measures to overcome the consequences of conflict in society, address past human rights violations that occurred in the context of conflict(s), contribute to the fight against impunity, promote transitional justice processes, facilitate access to justice for those affected by the conflict, including through effective investigations and reparations, to build peace, and to strengthen social cohesion.⁴⁹

Together, these declarations and guidance notes indicate wide ranging support among NHRIs and at the UN for NHRIs to play a continued and developing role in transitional justice processes.

In conflict and post-conflict contexts, NHRIs have thus become viewed as part of the wider institutional architecture of transitional justice. In many instances they are cast in a supporting role, helping to establish and publicise transitional justice mechanisms, like truth and reconciliation commissions. NHRIs also complement the activities of formal transitional justice mechanisms by monitoring the implementation of recommendations included in TRC reports, contributing to the operation and administration of TRCs, providing victim support services that are beyond the remits or capacities of transitional justice mechanisms, preserving documents, archives, records, and evidence gathered by temporary transitional justice mechanisms, and managing reparations programmes. Alongside these complementary or support roles, however, NHRIs also play direct roles in transitional justice processes. NHRI investigations contribute to uncovering the truth, their reporting, education, training, and public awareness functions serve demands to ensure the non-recurrence of human rights abuses, and their victims’ programmes may provide reparations and compensation to victims. NHRIs also contribute to accountability indirectly, by providing information about human rights violations to courts and TRCs, and directly, by publicising the truth, naming names, and referring cases for prosecution. It is this contribution to accountability that makes NHRIs especially vulnerable in transitional and post-conflict contexts.

Challenges

Alongside conflict-related operational challenges, NHRIs face political challenges in transitional and post-conflict contexts. Transitional and post-conflict contexts are marked by political compromises. These include temporary power sharing arrangements and institutional reforms that do not necessarily adhere to the principles of democratic representation, and extend to including ‘unreasonable actors’, such as those accessed of committing, ordering, or enabling human rights violations, in formal political processes. As Colleen Murphy notes, ‘shaking hands with the devil is often an ineliminable part of ending conflict or repression’.⁵⁰ In transitional contexts, she continues, ‘[p]rincipled compromise … cannot exclude unreasonable actors, for the very nature of the conflict is such that unreasonable actors are one of the constituent elements to deal with for any transition to be possible and successful’.⁵¹ As a result, transitional and post-conflict contexts often see unreasonable actors assume formal positions of power, gaining or retaining political legitimacy despite their past misdeeds.

So too, transitional justice is by its very nature marked by compromises, tensions, and hard choices. It is inevitably selective: in contexts marked by the mass perpetration of human rights violations it is simply not feasible to prosecute every perpetrator, nor does it necessarily serve the wider goal of transitional justice, the establishment of a stable and peaceful society in which human rights are respected and protected.⁵² It entails choices over who will be held accountable for their actions and what form that accountability will take, whether impunity will be institutionalised in the form of amnesties or granted implicitly through the selective prosecution of a chosen few, which accountability mechanisms will be instituted, and how to uphold the rights and meet the needs of victims.

By contrast, NHRIs are not guided by the demands of political compromise. On the contrary, the principles of independence that underpin their operation make it clear that NHRIs must not make decisions based on political interests. Rather, they must hear complaints made by ‘any person’ against any other person and ‘[f]reely consider any questions falling within its competence’.⁵³ In doing so, NHRIs are intended to demonstrate the equal application of the rule of law to all, regardless of power or position. In short, where ensuring accountability and combatting impunity for human rights violations are concerned, there are no political compromises for NHRIs.

In theory, NHRIs ought to be better equipped to withstand political pressure to allow impunity for human rights violations than temporary transitional justice mechanisms. Unlike TRCs and ad hoc tribunals, the establishment and operation of NHRIs is often constitutionally prescribed. This provides NHRIs both with added security against dissolution and with avenues of legal recourse against political interference and other breaches of their independence or capacities in their states’ constitutional courts. What is more, with the key features that facilitate the functional independence of NHRIs reflected in the Paris Principles – for example, the provision of adequate powers and resources to undertake their mandated activities – the GANHRI accreditation process provides a means of highlighting and calling for the remedying of attempts to interfere in their pursuit of accountability for human rights violations. This too ought to guard against pressure to grant powerful actors impunity for human rights violations.

In transitional and post-conflict contexts, however, the pursuit of accountability and repudiation of impunity can nevertheless place NHRIs in an invidious position. While much of their credibility rests on their willingness and ability to investigate cases involving high profile individuals, including members of parliament and government departments, and contribute to efforts to hold those found guilty of committing human rights violations to account, doing so may put them at odds with the very individuals whose support they rely on to operate effectively. Underlying this challenge is the fact that although constitutional establishment may provide NHRIs with certain protections, those provisions vary considerably from case to case. For example, neither Nepal’s 2007 Interim Constitution nor its 2015 Constitution guarantee the NHRC’s independence or funding, thus limiting its protection against political interference and the withholding of resources. The Kyiv Declaration thus acknowledges that when operating in transitional and post-conflict contexts, NHRIs ‘may be subject to criticism by State authorities for underlining and advising on the State’s human rights actions and obligations’. Providing more significant insights into the forms those criticisms often take, it recommends that NHRIs ‘should not be subject to reprisals or any other form of intimidation as a result of their mandated activities and enjoy freedom from interference and continue to enjoy functional immunity to perform their functions in conflict areas’.⁵⁴ As the case of Nepal demonstrates, that interference is often blatant, taking the form of insufficient provision of funding, meddling in appointment processes, and refusing to implement recommendations made by NHRIs for the enhanced protection and promotion of human rights. Often amounting to breaches of the Paris Principles, these types of actions may be reflected in decisions to downgrade or threaten to downgrade NHRIs during their accreditation processes, as has occurred in the case of Nepal’s NHRC.

Yet, as the case of Nepal also demonstrates, NHRIs operating in transitional and post-conflict contexts are also subject to insidious, indirect forms of interference, such as the promulgation of transitional justice legislation that hampers their ability to ensure accountability and combat impunity. Standing outside the remit of GANHRI’s accreditation process and beyond the scope of constitutional protections, these forms of interference are more difficult to detect, making efforts to encourage remediation challenging, and placing the legitimacy and credibility of such NHRIs at risk.

The National Human Rights Commission of Nepal

Like many NHRIs around the world, the NHRC was established in the context of Nepal’s 1990 transition to democracy. That transition came after a wave of popular protests, the Jana Andolan (People’s Movement), swept the country, ushering forth a new constitution that established parliamentary government and ‘guaranteed the democratic and human rights of the people’.⁵⁵ In the immediate term, that commitment to human rights provoked debate about the need to establish an institution for the protection and promotion of human rights.⁵⁶ Although the government initially resisted pressure to establish an NHRI, the worsening human rights situation and outbreak of the Maoist insurgency in 1996 finally brought the issue to a head. After ‘extensive lobbying’ by civil society groups and a directive issued by the Supreme Court, the National Human Rights Commission Act was passed in 1997.⁵⁷ The new NHRC was mandated to ‘investigate and monitor human rights violations’, ‘raise awareness among the people about human rights, conduct research, and review laws and policies’, and to ‘implement international treaty body recommendations’.⁵⁸ By the time it became operational in 2000, the deteriorating human rights situation meant that even within these limited parameters, the task in front of it was substantial.

Protecting and promoting human rights during conflict

Established in during a civil war, a lack of funding, capacity, and expertise (particularly on enforced disappearances) meant that the NHRC could not ‘provide effective remedies … on the complaints received’ or investigate every case brought before it.⁵⁹ To make matters worse, Nepal’s democratic transition was under threat. In 2002, King Gyandendra launched a coup, apparently to address the worsening conflict in the country but ostensibly to bring about a return to absolute monarchy. In the weeks that followed, the NHRC began to receive a growing number of ‘complaints against the army for the arrest and illegal detention of the general public’ as well as ‘allegations of killing, disappearances, torture’, and other human rights violations.⁶⁰

Despite its frustrations and the challenging circumstances in which it was operating, during this period the NHRC made a significant contribution to gathering evidence on conflict-related human rights abuses. This preliminary work provided the foundations for its later contribution to transitional justice: the evidence it compiled formed part of the TRC’s investigations. By coordinating with civil society groups, by 2002 human rights violations were being monitored in 35 highly affected districts.⁶¹ The NHRC also undertook investigations into several atrocities including the Doramba incident and the Chitwan bus attack. During a ceasefire on 17 August 2003, the very day that government representatives and Maoists met for their third round of peace talks, Nepali security forces arrested and executed nineteen individuals, two civilians and seventeen Maoistsin the village of Doramba, Ramechhap District. An NHRC investigation which later exhumed the bodies, conducted forensic examinations and gathered eye-witness testimonies found ‘strong evidence of unlawful executions’.⁶²

Although the Army refused to accept the full extent of its responsibility for the Doramba incident or to hold any of its personnel accountable for their actions, the NHRC’s work marked a significant turning point in the investigation of human rights violations in the conflict. Not only was it the first time that exhumations and forensic examinations had taken place, but its findings demonstrated a brutal reality that, until then, had not been well understood by the general public, ‘namely, that the Maoists were not the only party responsible for brutal executions’.⁶³ Despite the best efforts of the government and army to undermine it, the NHRC’s efforts in the Doramba case thus bolstered its credibility.

Two years later, the NHRC undertook a fact-finding mission to gather evidence after a bus carrying more than 100 passengers was ambushed and blown up by Maoists in Chitwan Province, killing 36 and injuring 72 people. Among its findings, the NHRC established that twelve members of the security forces, armed but wearing plain clothes, had been aboard the bus and thus tied the incident to a long running dispute over the security forces’ practice of using local buses to move around the area undetected by the Maoists.⁶⁴ It concluded that by using a ‘civilian mode of transportation’ and knowingly ‘putting the lives of civilians in harm’s way’, the security personnel had ‘violated the provisions of human rights and humanitarian law by travelling by bus in civil dress and with arms’.⁶⁵ It also concluded that ‘[t]he CPN (M) has seriously violated human rights and international humanitarian law for causing the heinous incident by exploding the ambush that targeted innocent civilians’.⁶⁶ The NHRC concluded its report by recommending the government better protect the human rights of its citizens and calling on the CPN(M) ‘immediately refrain’ from attacking and endangering the lives of civilians.⁶⁷

By then, however, a second royal coup, launched on 1 February 2005, had provided the catalyst the peace process needed to reach fruition. This time the major political parties joined together with the Maoists to oppose Gyanendra’s rule.⁶⁸ In April 2006, hundreds of thousands of people took to the streets of Nepal to join Jana Andolan II, the second people’s movement. In a ‘resounding rejection of a despotic monarch’, after 19 days of protests King Gyanendra was ousted, parliament was restored, and G.P. Koirala was installed as interim prime minister.⁶⁹ By the end of the year, the CPA had been signed and the conflict was officially over.

The Comprehensive Peace Agreement

Although the NHRC had undertaken vital preliminary work in gathering much of the evidence necessary to conduct a post-conflict justice process, the form that process took and the role the NHRC was afforded was determined, less by its own mandate and priorities, and more by the political context in which the CPA was signed. To secure a permanent ceasefire, the CPA provided that the CPN(M) would be transformed into a legitimate political party. It also included provisions for new democratic elections to be held and a new constitution drafted, the Constituent Assembly to decide on the place of the monarchy in Nepal’s future, and for a powersharing arrangement to operate until elections could be held. It also included extensive human rights provisions, including several relating to the implementation of a transitional justice process. In particular, both sides agreed to ‘impartial investigation and action’ in accordance with the law for those accused of violating human rights, proclaimed that ‘impunity will not be tolerated’, and promised to ensure that the rights of the victims of abuses and the families of the disappeared to obtain relief were upheld. To achieve these ends, the signatories agreed to establish a TRC, although there is little evidence to suggest their commitment to its operation extended beyond it being a way of assuaging international pressure to ensure accountability for human rights violations without committing to trials.⁷⁰

For its part, the NHRC was mandated to ‘carry out works related to the monitoring of human rights as mentioned in this agreement in addition to its duties as determined by law’.⁷¹ Both parties also agreed to receive reports compiled by the NHRC, to ‘provide information requested’ by it, and to ‘implement the suggestions and recommendations provided by [it] … on the basis of agreement and discussions’.⁷² Although it was afforded only a minor role, this monitoring mandate soon saw the NHRC mired in the controversies that have surrounded Nepal’s transitional justice process.

The politics of transitional justice in Nepal

In 2007 an Interim Constitution was agreed. It transformed the NHRC from a statutory to a constitutional body, thereby bolstering the legitimacy of its establishment and enhancing its security. As a statutory body, the NHRC had previously derived its authority from government and could be dissolved by a simple act of parliament; as a constitutional body, its power was now derived from the constitution, its establishment was a mandatory requirement of the government, and it could not be so easily dissolved. The Interim Constitution also expanded the NHRC’s mandate, to impose on it the duty ‘to ensure the respect, protection, and promotion of the human rights and its effective implementation’.⁷³ It did not, however, provide adequate guarantees of funding or independence as required by the Paris Principles. In its first Report on the Status of Human Rights under the Comprehensive Peace Agreement (2007) and three year assessment in 2009, the NHRC noted that its work had been hampered by a ‘lack of resources and human resources’, the most serious of which was the failure to appoint enough commissioners.⁷⁴ Lacking sufficient staff, it argued, ‘seriously affected … the protection of human rights of civilians and … making recommendations for prosecution against the guilty and providing compensation to the victims’.⁷⁵ It also indicated that, at best, human rights were not a key priority for the new government and, at worst, the failure to provide the NHRC with adequate staff or resources was part of a deliberate effort to prevent holding sitting members of parliament accountable for human rights violations.

Despite these limitations, between 2002 and 2008, the NHRC received more than 8000 complaints, of which 2000 were investigated and 225 recommendations made to the government.⁷⁶ Although the NHRC was not afforded an explicit transitional justice mandate beyond monitoring the process, with the TRC not yet established, the investigations it undertook in accordance with its general mandate filled an important gap in the official transitional justice process. Among the cases it investigated in partnership with the OHCHR was the Shivapuri case in late 2007. Shivapuri National Park, sometimes known as Nepal’s ‘killing fields’, was the site at which an army officer claimed to have witnessed the cremations of several disappeared persons in 2003.⁷⁷ An earlier NHRC report issued in May 2006 had already identified the nearby barracks of the Bhairabnath battalion as a site of forty-nine disappearances. The 2007 investigation found ‘partially burned clothing, half-burnt logs, and other objects’, and concluded that the site had been ‘used for extra-judicial killings and cremations’.⁷⁸ In the face of opposition to their operations, the NHRC and OHCHR reiterated ‘the rights of victims to know the truth and to receive justice and reparation’, key goals of transitional justice and called on the government to protect the site to preserve evidence for forensic examination.⁷⁹

As NHRC reports from this time also noted, implementation of the CPA was ‘less than satisfactory’.⁸⁰ Most alarmingly, the 2009 report detailed evidence of human rights violations, including extrajudicial killings, torture, and enforced disappearances perpetrated by both sides after the CPA was signed.⁸¹ It also noted that neither party had disclosed the whereabouts of persons forcibly disappeared during the conflict, nor had a TRC been established. As Rawski and Sharma note, the ‘post-CPA period proved hostile to human rights advocacy, in particular to calls for holding accountable perpetrators of conflict related violations’.⁸² When the first draft bill to establish a TRC was tabled in parliament in June 2007, members of the human rights community were dismayed to discover it proposed to grant the commission the ‘power to recommend amnesty for those perpetrators who committed gross violations of human rights or crimes against humanity “in course of abiding by his/her duties or with the objective of fulfilling political motives”’.⁸³ Although the bill excluded those accused of ‘any kind of murder committed after taking under control or carried out in an inhumane manner … inhuman torture’, and rape from receiving amnesties, this did little to limit the scope of impunity: the first exclusion was too vague to operationalise, torture remained uncriminalised in Nepal, and the statute of limitations on rape was 30 days.⁸⁴ What is more, the bill afforded that the ‘final decision with respect to the granting of amnesty will be taken by the government of Nepal’.⁸⁵

Case withdrawals

Debate about the draft TRC Bill was ultimately put aside as the country prepared for its first post-conflict general election, postponed twice due to political wrangling by the CPN-M. When the election finally took place on 10 April 2008, the Maoists won 220 of 601 seats and their leader, Pushpa Kamal Dahal, known as Prachanda, became Prime Minister. Under Prachanda’s leadership, the implementation of the CPA remained unsatisfactory, particularly concerning both parties’ commitment to combat impunity and establish a TRC. It also saw the emergence of a practice designed to ensure the impunity of powerful actors accused of human rights violations: case withdrawals. On 27 October 2008, the CPN(M)-led government withdrew 349 criminal cases while other cases, many of which involved Maoists leaders and cadres, were ‘withdrawn by cabinet decisions’.⁸⁶ This practice worsened in the years that followed, fuelled by political instability that followed Prachanda’s resignation as prime minister in November 2009. His successor, Madhav Kumar Nepal, lasted just seven months in the position before resigning in June 2010. Before doing so, however, his CPN-UML-led coalition government withdrew 282 conflict-related criminal cases.⁸⁷ In its 2005–2009 report on the CPA, the NHRC complained that ‘[t]he government action of withdrawing cases of murder, rape, kidnapping, and other serious offences in large numbers promoted impunity’ and was therefore in breach of the peace accord’s terms.⁸⁸ More insidiously, withdrawals also prevented the NHRC from resolving cases it had investigated and recommended for prosecution, thereby harming its perceived credibility and effectiveness.

Amidst serious disagreements over the process for drafting a new constitution and managing the on-going peace process, it took seventeen attempts before a new prime minister, Jhala Nath Khanal, was elected. Under his prime ministership, Agni Sapkota, a conflict-era Maoist leader was appointed to the Cabinet post of Minister for Information and Communications, despite ongoing ‘investigations into his role in the abduction, enforced disappearance, and suspected killing of Arjun Lama’ in 2005.⁸⁹ Although his appointment was challenged by a group of human rights defenders in the Supreme Court, their efforts had little effect: Sapkota has not been tried for his alleged offences and is currently the speaker of the House of Representatives.

Also unable to secure agreement on key post-conflict issues, Khanal resigned after six months in office. In the negotiations that followed to elect a new prime minister, the further withdrawal of cases became ‘a pre-condition for cooperation between the Maoists and Madhesi political parties, which led to the formation of a government led by Prime Minister Baburam Bhattarai’.⁹⁰ In the days after his appointment as Attorney-General in the new government, CPN-M politician, Mukti Pradhan, announced that ‘[a]ll politically motivated and baseless cases against Maoists will be withdrawn, including cases against leaders and cadres of the Madhesi parties’.⁹¹ In response, the Chief Commissioner of the NHRC, Kedar Nath Upadhyaya wrote to Prime Minister Bhattarai, warning him that ‘withdrawing such cases would be against the political parties’ commitment to defend and promote human rights’.⁹² His efforts were to no avail. In March 2012, the Bhattarai government withdrew a further 424 cases, bringing the total number of cases withdrawn between 2008 and the dissolution of parliament prior to the 2013 elections to more than 1055. In a reversal of the previous ballot, when the next election took place in 2013, the Nepali Congress Party enjoyed a resounding victory, Sushil Koirala became the next prime minister and the CPN-M won just 26 seats.

On several occasions during this period, the NHRC raised concerns over the practice of case withdrawals and its contribution to the culture of impunity in Nepal.⁹³ Together with the OHCHR, it noted that although case withdrawals were being justified as ‘necessary to promote the peace process and fully implement the Comprehensive Peace Agreement, a provision of which calls for the withdrawal of cases brought against individuals “due to political reasons”’, a large number of the cases withdrawn were not political but criminal in nature.⁹⁴ During Nepal’s Universal Periodic Review Process in 2011, the NHRC noted that:

Case withdrawals have effectually served to protect politically connected individuals from criminal accountability, promoting a policy of de facto impunity for the perpetrators of hundreds of serious crimes. This trend has undermined the rights of alleged victims to an effective remedy in those cases, and has impeded efforts to transition from the existing culture of impunity to a stronger judicial system based on impartiality and the rule of law – critical foundations for a sustainable peace.⁹⁵

As a report produced by the International Commission of Jurists remarked at around the same time, ‘in Nepal there is a tacit consensus across the political spectrum not to hold perpetrators of human rights violations accountable’.⁹⁶ This consensus played out in several arenas, including in efforts to limit and interfere in the work of the NHRC.

Legislative developments

During this period of political upheaval, two important developments took place in Nepal’s human rights regime. The first, in 2012, was the promulgation of the Human Rights Commission Act. The purpose of the Act, which replaced the Human Rights Commission Act 1997, was to ‘make legal provisions with regard to the functions, duties, powers, and procedures of the NHRC to ensure the respect, protection and promotion as well effective implementation of human rights’.⁹⁷ In many ways, however, the 2012 Act was a regressive step designed to limit the operation of the NHRC. As a comparison of the 1997 and 2012 Acts reveals, this was apparent from the outset, the 2012 Act stripping away the earlier characterisation of the NHRC as an ‘independent and autonomous human rights commission’. Where the 2012 Act discussed the independence and autonomy of the NHRC, it did so only in functional terms, removing all mention of institutional independence.⁹⁸ A further provision, which sought to limit the powers, independence and autonomy of the NHRC, vested the power to decide whether to initiate court proceedings recommended by the NHRC with the Attorney-General. That is, it put the power to pursue accountability for conflict-era human rights violations in the hands of a political actor. Also concerning was the addition of a statute of limitations on registering human rights complaints. Section 10(5) of the 2012 Act stipulated that complaints regarding human rights violations must be lodged within six months of the incident taking place or within six months of release, if the victim had been held in captivity. With complaints of conflict-related human rights violations still being lodged, this provision had the potential to limit the NHRC’s ability to address conflict era abuses. Together, these legislative developments served to damage the NHRC’s legitimacy, by restricting its independence, and its credibility, by limiting its ability to meet the expectations of victims of human rights violations.

The second major development involved legislation for the establishment of a truth and reconciliation commission and commission of enquiry into enforced disappearances. Promulgated on 13 March 2013, while the government was in caretaker mode, the draft Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission was the result of a political deal ‘designed, at least in part, to ensure that those alleged to have been responsible for gross human rights violations and crimes under international law … would effectively avoid accountability’.⁹⁹ To that end, the ordinance included an amnesty provision affording the commission power to grant amnesties to perpetrators ‘showing adequate grounds of bases’.¹⁰⁰ Later that year, the Supreme Court ruled that the Ordinance was unconstitutional because it failed to provide ‘appropriate, administrative and judicial measures’ to investigate, prosecute and punish perpetrators of human rights violations and deemed its amnesty provision as being inconsistent with ‘international humanitarian law and the norms and principles of transitional justice’.¹⁰¹ It also ordered the government to ‘ensure that any new laws unequivocally exclude the possibility of granting amnesties for human rights violations’.¹⁰²

The NHRC, the TRC and the CIEDP

Despite clear directives from the Supreme Court and recommendations made by the NHRC, the Enforced Disappearances Enquiry, Truth and Reconciliation Act (TRC Act) (2014), which established two separate commissions – a Commission of Inquiry on Enforced Disappeared Persons and a Truth and Reconciliation Commission – included amnesty provisions for those who fully disclosed the truth, accepted that they had ‘committed a gross violation of human rights in the course of the armed conflict’, expressed remorse, apologised, and promised not to commit further offences of a similar nature.¹⁰³ It also retained from the 2013 Ordinance a provision allowing amnesties on the basis of reconciliation without the agreement of the victim and, mirroring the NHRC Act (2012), specified that referrals for prosecution must be submitted to the Attorney-General via the Ministry of Peace and Reconstruction, making the process ‘highly susceptible to political interference’.¹⁰⁴ These provisions remain a source of controversy, the NHRC joining with other human rights organisations in calling for amendments to be made to the Act to bring it into line with Nepal’s obligations under the CPA and international law.

The TRC Act also defined two specific roles for the NHRC in the administration of the TRC and CIEDP. First, it gave the NHRC responsibility for monitoring the implementation of recommendations included in the reports to be submitted by the TRC and CIEDP at the conclusion of their inquiries.¹⁰⁵ In the absence of sufficient funding and resources, however, neither commission completed its work in the two years they were initially allocated. The commissions were granted one-year extensions in 2018 and 2019 but the contracts of the commissioners themselves were not extended beyond 13 April 2019. By allowing the commissioners’ contracts to lapse, the government was able to delay the appointment of their replacements, thereby stalling their inquiries.¹⁰⁶

The TRC Act also provided that the chairperson of the NHRC or another commissioner would serve on the Recommendation Committee responsible for appointing commissioners to the TRC and CIEDP.¹⁰⁷ This provision has directly involved the NHRC in highly ‘politicized appointment process[es] that [have] led to problematic appointments’.¹⁰⁸As Sarkin and Bhandari note, during the most recent appointments round the ‘final selection was either discussed with politicians or the appointments were made in consultation with major political parties’.¹⁰⁹ As a result, the independence and credibility of the TRC and CIEDP were seriously undermined, while the ‘dubious role’ played by the NHRC in the appointments process brought its legitimacy, credibility and, in particular, independence into question.¹¹⁰ Of particular concern was the role played by its representative in the 2020 appointment of Ganesh Datta Bhatta as the new Chair of the TRC. Not only did Bhatta not apply for the position but he is known to be a close associate of former Prime Minister Sher Bahadur Deuba, who is ‘implicated in multiple cases of human rights violations’ during the conflict.¹¹¹ He also has the backing of former and current prime minister, Pushpa Kamal Dahal. Inclusion in the appointments process thus led to a situation in which the NHRC representative was seen to be doing the bidding of powerful political actors rather than acting independently. Even more serious are claims that the NHRC representative ‘failed to protect the interests of victims and respect international human rights standards’, with civil society and victims’ groups calling on Prakash Wasti not to participate in the proceedings, despite being legally required to do so.¹¹² His continued involvement in the Recommendations Committee has exacerbated the sense that the NHRC is reluctant to ‘confront the government or other powerful institutions, such as the army and political parties, that oppose accountability for rights abuses’.¹¹³ As such, it has been backed into a corner in which it is legally required to participate in activities that undermine its credibility.

Twenty years of the NHRC

The 2020–2021 Annual Report of the NHRC provides both a comprehensive overview of the commission’s work during two decades of operation and a scathing assessment of the government’s commitment to protecting human rights. In large part, the report represents an attempt on the part of the NHRC to re-establish its independence and credibility and distinguish its efforts from the government. It notes that between 2000 and 2020 the NHRC received 12 825 complaints, of which 6617 were resolved, a significant proportion of which concerned conflict-related human rights violations. 3147 were related to disappearances: of these 2008 were investigated, 277 were referred to the TRC, and 1753 applications for compensation were made by the relatives of disappeared persons.¹¹⁴ Of the 1195 recommendations it made between 2000 and 2020, 940 were directly related to human rights violations committed during the conflict. Those recommendations extended from the provision of compensation to the victims of human rights violations in 765 cases, ‘identifying the guilty and taking action as per the law’ in 528 cases, and taking action against the guilty in 106 cases to the provision of interim relief (103), free education (71) and free healthcare (73).¹¹⁵ Given the range of socio-economic grievances that underpinned Nepal’s civil conflict and harms suffered by its population as a result of its violence, the provision of measures like free education and healthcare contributes to holistic transitional justice.

As the NHRC makes clear throughout its twenty-year report, however, ‘the state of implementation of the recommendations is not satisfactory’.¹¹⁶ It notes that only 13.64% of its recommendations have been fully implemented, while 37.23% are partially implemented, and 50% have not been implemented at all.¹¹⁷ Those that have been implemented mostly relate to compensation claims while those that have not call for further investigations, prosecutions and punishment of individuals accused of human rights violations. That is, while some elements of transitional justice recommended by the NHRC have been implemented, for the most part those related to accountability have not. As the report notes, where recommendations for compensation and punishment have been made in the same case, the Government of Nepal has routinely paid compensation to the family and then declared that the recommendation has been fully implemented. In doing so, the NHRC argues, it has deliberately conceived monetary compensation as a form of victim’s justice to avoid accountability in the form of prosecutions and punishment. This, it maintains, ‘has encouraged the tendency of impunity’.¹¹⁸

In an extraordinary attempt to combat that impunity, the NHRC 2000–2020 report named 288 individuals accused of human rights violations. As Mandira Sharma notes, while this belated effort is ‘an important step toward addressing entrenched impunity in Nepal, it has exposed the fact that the commission has struggled with a lack of investigative capacity, failing in many cases to summon alleged perpetrators or demand documentation’.¹¹⁹ The outgoing Chief Commissioner of the NHRC, Anup Raj Sharma, did not disagree with her assessment, stating that:

It was the legal responsibility of the commission to make the list public and we have been able to do that at the last moment of our tenure. We should have done this before, but we couldn’t because of our weakness.¹²⁰

In an interview the year before, Sharma explained that fear of political repercussions had made the NHRC hesitant to name names or blacklist perpetrators. Agreeing with the sentiments of a previous commissioner, he explained that ‘the last card of the commission would be gone if the people in power give a cold shoulder’.¹²¹ It would thus seem that the lack of robust protections, ensuring the independence and adequate resourcing of the NHRC has meant that its commissioners felt they could not pursue accountability without putting the continued operation of the commission at risk. Indeed, although the 2015 Constitution makes dissolution of the NHRC difficult, without guaranteed resources it would exist only on paper.

Among those the NHRC named are 16 civil servants, 98 police officers, 85 members of the Royal Nepal Army, and 65 Maoists¹²² including several high profile individuals, such as a former Chief of Army Staff, former Home Secretary Narayan and former Chief of Nepal Police.¹²³ In the majority of cases, most of which pertain to serious offences including murder, kidnapping, enforced disappearance, and torture, the NHRC recommended that action be taken against named individuals in accordance with the law. By the time its report was published in 2020, however, action had only been taken in 30 cases. Of these, most were recommendations for reprimands, warnings or departmental action. Very few prosecutions have taken place. As Sharma notes, although the ‘major parties have differences in many issues … they seem to have a common position on transitional justice … to avoid prosecution at the maximum level’.¹²⁴

These and other complaints were also included in the NHRC’s submission to Nepal’s Universal Periodic Review in March 2020, in which the commission sought to protect its independence and credibility by bringing international pressure to bear on the government. It noted that the NHRC Amendment Bill tabled in 2019, which granted the Attorney General ‘discretionary power in filing cases’ relating to human rights violations, undermined the independence and autonomy of the NHRC and contravened the Paris Principles.¹²⁵ It also argued that the commission’s lack of independence and insufficient resources, together with the government’s failure to implement its recommendations not only breached key tenets of the Constitution but also failed to uphold the Paris Principles. The SAC at GANHRI agreed, adding further concerns to its 2021 assessment of the NHRC’s reaccreditation application. Those concerns centred on the appointment of 4 new commissioners and a new NHRC chair through a politicised process that lacked transparency and openness. On 15 December 2020, an amendment to the Constitutional Council (Functions, Duties and Procedures) Act was passed, allowing appointments to constitutional bodies to be made with just three members of the Constitutional Council present. Three members of the Constitutional Council duly took advantage of this new amendment and made the appointments without the normal parliamentary hearings and vetting processes taking place. In doing so, the SAC argued that Nepal ‘failed to implement the essential requirements of the Paris Principles including the need for an open, transparent and participatory process with broad consultations’.¹²⁶ This, it continued, ‘undermines the independence, integrity and legitimacy’ of the NHRC which, in turn, ‘restricts the ability of the people of Nepal to access appropriate remedies for alleged human rights violations’.¹²⁷

Nepali civil society groups have also protested against the erosion of the NHRC’s independence. Together with Amnesty International, Human Rights Watch, and Forum Asia they have called for amendments to bring NHRC legislation in line with the constitution, several Supreme Court verdicts, and the Paris Principles.¹²⁸ At stake is not just the transitional justice process but the foundations of the democratic society the NHRC was established to serve. As the OHCHR argues, undermining the ‘independence, integrity and legitimacy of the NHRC’ not only ‘restricts the ability of the people of Nepal to access appropriate remedies for alleged human rights violations’ but ‘will have a chilling effect on civil society actors’.¹²⁹ It explains that:

An independent and impartial national human rights institution is critical for the promotion and protection of civic space and in particular the right to assemble and associate. It is also vital to the transitional justice process, and ensuring accountability for crimes committed during Nepal’s armed conflict.

To date, however, neither its interventions nor those of local and international civil society groups have prompted action on the part of the Nepalese government. In August 2023, just two months before the downgrading of its status was to come into effect, the NHRC began lobbying the government to amend the National Human Rights Commission Act to bring it into conformity with the Paris Principles.¹³⁰ Even in the unlikely event that the required amendments are tabled before parliament in time, however, as long as the results of the flawed appointments process remain upheld, the independence and integrity of the NHRC will continue to be in doubt and downgrading will almost inevitably follow.

Conclusion

While the decision of the SAC to downgrade Nepal’s NHRI from A to B status has been justified in terms of proximate issues, including those surrounding the commission’s appointment process, funding, and independence, the most significant factor underlying its demotion is its entanglement with the country’s transitional justice process. By casting it as a transitional justice institution, the parties to the CPA and several governments responsible for subsequent acts of transitional justice legislation have risked and ultimately damaged the legitimacy and credibility of the NHRC. In broad terms, the passing of legislation and institution of practices designed to ensure that Nepal’s transitional justice process secures impunity for powerful perpetrators of human rights violations, has jeopardised the institution’s legitimacy, undermining its processes, and preventing it from achieving its intended outcomes. In particular, the requirement for case referrals to pass through the Attorney-General’s office limits the independence of the NHRC and harms the legitimacy of its processes and outcomes. Similarly, case withdrawals have prevented the NHRC from contributing to accountability for conflict-era human rights violations, bringing the legitimacy of its outcomes and, by extension, its credibility and effectiveness into doubt. By failing to undertake transparent, open, and consultative appointments processes, the Government of Nepal has further damaged the compositional legitimacy of the NHRC as an independent institution. At the same time, the NHRC’s involvement in controversies surrounding the TRC and CIEDP appointments processes, inability to perform its expected functions, and apparent lack of independence have also damaged its credibility, among the people of Nepal and members of the international community, including GANHRI. Adding to its loss of credibility is the NHRC’s self-confessed failure to stand up to the government or to be more insistent in naming individuals accused of human rights violations and pursuing accountability for their actions. And lastly, the failure to implement recommendations related to the pursuit of accountability for conflict-era human rights violations has damaged the legitimacy of the NHRC’s outcomes and its effectiveness.

Although the NHRC has made a significant contribution to addressing human rights violations committed during Nepal’s civil conflict, its involvement in the country’s transitional justice process has thus come at a significant cost. That cost raises significant questions about the wisdom of viewing NHRIs as institutions capable of contributing to post-conflict justice. On one hand, the aims of transitional justice and functions of NHRIs are so well aligned that a relationship between the two makes considerable sense. More pointedly, it would seem absurd for NHRIs to simply ignore conflict-related human rights violations, especially in cases where other institutions are unwilling or unable to investigate and address them. As the case of Nepal demonstrates, NHRIs can make important contributions to transitional justice processes, by gathering evidence, engaging in advocacy, and providing support and compensation to victims. On the other hand, however, engagement in transitional justice can be risky for NHRIs. As permanent and independent institutions, NHRIs are not driven by the same political considerations as transitional justice mechanisms that are typically temporary and are both capable of and expected to make the sorts of political compromises that balance the needs of peace and justice in the aftermath of conflict. As independent institutions, NHRIs are mandated not to ‘shake hands with the devil’ but rather, to hold the devil to account. Involvement in transitional justice drags NHRIs into an uncomfortable political space, one that they are specifically designed to stand outside.

What thus follows is that if NHRIs are to be included in transitional justice processes, careful consideration needs to be paid to defining their roles and ensuring that protections are in place to maintain their legitimacy and credibility in difficult political contexts. Among the possible ways of achieving this, bolstering the legal and constitutional protections afforded NHRIs is perhaps the most obvious course of action. In some ways transitional contexts, in which democratic institutions are being established or reformed and constitutions drafted or amended, provide opportune moments for instituting these sorts of measures. Yet, as the degree to which successive governments of Nepal have seemed impervious to international pressure to bring NHRC legislation into line with international expectations and to legally-binding directions issued by the Supreme Court, even cast-iron constitutional protections are no guarantee against wilful political interference in NHRI processes. Whether this phenomenon is particular to the case of Nepal or reflects a more widespread trend among states engaging in transitional justice remains to be seen; given what is at stake, both for NHRIs, transitional justice processes, and the promotion and protection of human rights more broadly, further examination of other cases is surely warranted.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Australian Research Council [grant number DP180103138; FT190100335].

Notes on contributors

Renée Jeffery

Renée Jeffery is a Professor of International Relations and Australian Research Council Future Fellow in the Griffith Asia Institute at Griffith University. Her most recent book, Negotiating Peace: Amnesties, Justice, and Human Rights was published by Cambridge University Press in 2021.

Notes

1 Seira Tamang, ‘Exclusionary Processes and Constitution Building in Nepal’, International Journal on Minority and Group Rights 18, no. 3 (2011): 294.

2 Abul Hasnat Monjurul Kabir, ‘Establishing National Human rights Commissions in South Asia: A Critical Analysis of the Processes and the Prospects’, Asia-Pacific Journal on Human Rights and the Law 2, no. 1 (2001): 33.

3 Mandira Sharma, ‘Transitional Justice in Nepal: Low Priority, Partial Peace’, in Two Steps Forward, One Step Back: The Nepal Peace Process, Accord 26, ed. S. Thapa and A. Ramsbotham (London: Conciliation Resources, 2017), 32.

4 Renee Jeffery, ‘Nepal’s Comprehensive Peace Agreement: Human Rights, Compliance and Impunity a Decade On’, International Affairs 93, no. 2 (2017): 351–2.

5 Comprehensive Peace Agreement between the Government of Nepal and the Communist Party of Nepal-Maoist (CPA), November 21, 2006, 7.1.3, http://peacemaker.un.org/sites/peacemaker.un.org/files/NP_061122_Comprehensive%20Peace%20Agreement%20between%20the%20Government%20and%20the%20CPN%20%28Maoist%29.pdf

6 Ibid., 9.1 & 9.4.

7 ‘Report and Recommendations of the Session of the Sub-committee on Accreditation’ (GANHRI: Geneva, 3–7 October 2022), 36.

8 Ibid., 36.

9 Paris Principles (Principles Relating to the Status of National Institutions) (1991) https://nhri.ohchr.org/EN/AboutUs/Pages/ParisPrinciples.aspx; Shree Ram Adhikari, ‘NHRC’s Status: Why it Went from A to B’, The Himalayan, December 23, 2022.

10 Sharma, ‘Transitional Justice in Nepal’.

11 Corina Lacatus and Kathryn Nash, ‘Peace Agreements and the Institutionalisation of Human Rights: A Multi-Level Analysis’, International Journal of Human Rights 24, no. 6 (2020), 889–912; Michelle Parlevleit, ‘National Human Rights Institutions and Peace Agreements: Establishing National Institutions in Divided Societies’ (International Council on Human Rights Policy, 2006).

12 Guidance Note on National Human Rights Institutions and Transitional Justice (New York and Geneva: OHCHR, 2008), 11, http://nhriohchr.org/EN/Themes/Portuguese/DocumentsPage/NHRIs_Guidance%20Note%20TJ_oct%2008.pdf

13 Parlevleit, ‘National Human Rights Institutions’, 10; Tara Sarathy, ‘Hidden in Plain Sight: How National Human rights Institutions Can Strengthen the Women Peace and Security Agenda’, in Resilience and Resolution: A Compendium of Essays on Women, Peace, and Security, no editor (Office of the NATO Secretary General’s Special Representative for Women, Peace and Security, 2019), 31.

14 Sean Molloy, ‘National Human Rights Institutions in Post-Conflict Settings: An Evolving Research Agenda’, Journal of Human Rights Practice 12, no. 3 (2020): 592–619; Lacatus and Nash, Peace Agreements’.

15 Jonathan Liljeblad, ‘The Efficacy of National Human Rights Institutions Seen in Context: Lessons from the Myanmar National Human Rights Commission’, Yale Human Rights and Development Law Journal 19 (2017), 95–132; Katerina Linos and Tom Pegram, ‘What Works in Human Rights Institutions’, American Journal of International Law 16, no. 3 (2017): 1–61; Richard Carver, Measuring the Impact and Development Effectiveness of National Human Rights Institutions: A Proposed Framework for Evaluation (Bratislava: UNDP, 2014).

16 Molloy, ‘National Human Rights Institutions’, 593.

17 National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights (New York and Geneva: United Nations, 1995), 6.

18 Richard Carver, ‘A New Answer to an Old Question: National Human Rights Institutions and the Domestication of International Law’, Human Rights Law Review 10, no. 1 (2010): 2.

19 Ibid.

20 Paris Principles, Article 1.

21 A Manual on National Human Rights Institutions (Sydney: Asia Pacific Forum, 2015), 22.

22 Ibid.

23 Paris Principles.

24 Ibid.

25 Ibid.

26 ‘Accreditation’ (GANHRI, 2023), https://ganhri.org/accreditation/

27 National Human Rights Institutions: History, Principles, Roles and Responsibilities (New York and Geneva: United Nations OHCHR, 2010), 31.

28 ‘Accreditation’. Accreditation is not, however, an uncontroversial process. See Carol J. Petersen, ‘Bridging the Gap: The Role of Regional and National Human Rights Institutions in the Asia-Pacific’, Asian-Pacific Law and Policy Journal 13, no. 1 (2011): 201–3.

29 Meg Brodie, ‘Progressing Norm Socialisation: Why Membership Matters. The Impact of the Accreditation Process of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights’, Nordic Journal of International Law 80 (2011): 144–5.

30 Andrew Byrnes, Andrea Durbach, and Catherine Renshaw, ‘Implementing Human Rights in the Pacific through National Human Rights Institutions’, Victoria University of Wellington Law Review 40, no. 1 (2009): 251–77.

31 GANHRI, ‘Global Alliance of National Human Rights Institutions’ (2023), https://ganhri.org/

32 Sonia Cardenas, Chains of Justice: The Global Rise of State Institutions for Human Rights (Philadelphia: University of Pennsylvania Press, 2014), 106 & 107.

33 Thomas Weiss, ‘Governance, Good Governance and Global Governance: Conceptual and Actual Challenges’, Third World Quarterly, 21, no. 5 (2000): 801.

34 Ibid.

35 C. Raj Kumar, ‘National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights’, American University International Law Review 19, no. 2 (2003): 284; Linda Reif, ‘Building democratic institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection’, Harvard Human Rights Journal 13, no. 1 (2000): 18.

36 Kofi Annan in UN Press Release, ‘Good Governance Essential to Development, Prosperity, Peace Secretary-General Tells International Conference’ (July 28, 1997), https://press.un.org/en/1997/19970728.SGSM6291.html#:~:text=Good%20governance%20is%20also%20a,a%20path%20for%20consolidating%20peace.

37 Lacatus and Nash, ‘Peace Agreements’, 890.

38 Ibid., 896.

39 Ibid.

40 OHCHR, National Human Rights Institutions, 143.

41 Ruti Teitel, ‘Transitional Justice Geneaology’, Harvard Human Rights Journal 16 (2003): 69; Renee Jeffery and Ian Hall ‘Post-conflict Justice in Divided Democracies: The 1984 Anti-Sikh Riots in India’, Third World Quarterly 41, no. 6 (2020): 996.

42 Ruti Teitel, ‘Transitional Justice Geneaology’, Harvard Human Rights Journal 16 (2003): 69; UN Secretary General, ‘The rule of law and transitional justice in conflict and post-conflict societies’, S/2004/616 (2004), 8, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement

43 Toolkit for Collaboration with National Human Rights Institutions (New York and Geneva: OHCHR-UNDP, 2010), 48, https://www.ohchr.org/sites/default/files/Documents/Countries/NHRI/1950-UNDP-UHCHR-Toolkit-LR.pdf

44 Renee Jeffery, Negotiating Peace: Amnesties, Justice and Human Rights (Cambridge: Cambridge University Press, 2021).

45 Andrea Breslin and Anna Wurth, National Human Rights Institutions in Post-Conflict Situations: Mandates, Experiences and Challenges (German Institute for Human Rights, 2017), 12.

46 Network of African National Human Rights Institutions (NANHRI) Rabat Declaration 2009, 1c-1n, https://www.nanhri.org/rabat-declaration/

47 OHCHR, National Human Rights Institutions, 145.

48 Ibid.

49 European Network of National Human Rights Institutions (ENNHRI) Kyiv Declaration on the Role of National Human Rights Institutions in Conflict and Post-Conflict Situations (2015), http://ennhri.org/wp-content/uploads/2019/10/the_kyiv_declaration.pdf

50 Colleen Murphy, ‘On Principled Compromise: When Does a Process of Transitional Justice Qualify as Just?’ Proceedings of the Aristotelian Society 120, no. 1 (2020): 54.

51 Ibid., 55.

52 Murphy, ‘On Principled Compromise’, 47.

53 Paris Principles.

54 Kyiv Declaration 2015.

55 Ganga B. Thapa and Jan Sharma, ‘From Insurgency to Democracy: The Challenges of Peace and Democracy-Building in Nepal’, International Political Science Review 30, no. 2 (2009): 208.

56 Subodh Raj Pyakurel, ‘Role of NRDs in Democratic Movements in Nepal’ (Kathmandu: INSEC, 2017), 1.

57 Durbach, ‘Human Rights Commissions’, 8.

58 Tek Tamata, ‘A Theoretical Overview of the National Human Rights Institutions (NHRIs) and other like-minded Commissions in Nepal’, in Conference Proceedings, 2nd International Conference, National Human Rights Institutions in Southeast Asia, July 13–14, 2017, Bangkok, 241.

59 Shiva Datta Bhandari, ‘The Role of National Human Rights Institutions in Ending Impunity for HRDs During Conflict’ (2014), 62, 72; in Durbach, ‘Human Rights Commissions’, 2010.

60 Bhandari, ‘The Role of National Human Rights Institutions’, 64.

61 Ibid.

62 ‘Unlawful Killings and Summary Executions by Nepali Security Forces’, Human Rights Watch (2004), 29, https://www.hrw.org/reports/2004/nepal1004/4.htm.

63 Ibid.

64 NHRC, Preliminary Monitoring/ Investigation Report on the Incident of Ambush and Explosion Carried Out by CPN (Maoist) in Kalyanpur, Chitwan District (June 6, 2005), 3.

65 Ibid., 4.

66 Ibid.

67 Ibid., 6.

68 Warisha Farasat and Priscilla Hayner, Negotiating Peace in Nepal: Implications for Justice (New York: International Centre for Transitional Justice, 2008), 13.

69 Tafadzwa Pasipanodya, ‘A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal’, International Journal of Transitional Justice 2, no. 3 (2008): 397.

70 Aditya Adhikari and Bhaskar Gautam, Impunity and Political Accountability in Nepal (New York and Washington, DC: Asia Foundation, 2014), 61.

71 CPA, 9.4.

72 Ibid., 9.5.

73 Art. 132; NHRC & OHCHR, Observations on the National Human Rights Commission Bill 2009, Open Dialogue on Draft Legislation Series 2. (2011); see, for comparison Human Rights Commission Act 1997, 3.9.1).

74 ‘Three-Year Comprehensive Peace Accord Summary Report 2006-2009’ (Lalitpur, NHRC, 2009), 32.

75 ‘Summary of the Report on the Status of Human Rights under the Comprehensive Peace Agreement’ (Lalitpur: NHRC, 2007), n.p.

76 Tek Tamata, ‘UNDP and the National Human Rights Commission of Nepal’, Human Rights Education in Asia-Pacific 2 (2011): 117.

77 ‘Nepal: Investigate Kathmandu “Killing Field”’, Human Rights Watch (December 28, 2007).

78 Ibid.

79 ‘Nepal: Government Must Protect Possible Burial Sites of Victims of Disappearances’, reliefweb (December 19, 2009).

80 ‘Annual Progress Report 2007–2008’ (Lalitpur: NHRC, 2009), 5.

81 Ibid., Preface.

82 Frederick Rawski and Mandira Sharma, ‘A Comprehensive Peace? Lessons from Human Rights Monitoring in Nepal’, in Nepal in Transition: From People’s War to Fragile Peace, ed. Sebastian von Einsiedel, David M. Malone and Suman Pradhan (New York: Cambridge University Press, 2012), 182–3.

83 TRC Bill 2007: sec. 25(4)).

84 Ibid.

85 Ibid., 28(2)(a)).

86 International Commission of Jurists (ICJ), Authority Without Accountability: The Struggle for Justice in Nepal (Geneva: ICJ, 2013) 39, 42 & 43.

87 Ibid., 39.

88 ‘Three-Year Comprehensive Peace Accord Summary Report’, 3.

89 International Commission of Jurists, Authority without Accountability, 36.

90 Ibid., 19.

91 Ibid., 45.

92 Ibid., 46.

93 Report of the NHRI of Nepal on the UPR Process (NHRC July 2010), 70.

94 NHRC & OHCHR, Remedies and Rights Revoked: Case Withdrawals for Serious Crimes in Nepal: Legal Opinion (June 2011), 1, https://nepal.ohchr.org/en/resources/publications/2011/2011_06_23_Case_Withdrawals_for_Serious_Crimes_in_Nepal_E.pdf

95 Ibid., 2.

96 ICJ, ‘Authority without Accountability’, 19.

97 Nepal, Human Rights Commission Act, 2068 (2012), preamble, http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=90654&p_classification=01.05

98 Ibid., 4(2); ‘Necessity of amendments in National Human Rights Act 2012 for competence, autonomy and independence of the NHRC’ (Kathmandu: Advocacy Forum, 2012), https://www.advocacyforum.org/downloads/pdf/nhrc-act-review.pdf

99 ICJ, ‘Justice Denied: The 2014 Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act (2014), 4, https://www.icj.org/wp-content/uploads/2014/05/Nepal-TRC-Act-Briefing-Paper.pdf

100 Nepal, Truth and Reconciliation Ordinance (2013), 23(1).

101 Madhav Kumar Basnet v. Government of Nepal, Judgment, Supreme Court of Nepal, Special Bench (2014), 26; Renee Jeffery and Bikram Timilsina, ‘Re-democratising Nepal: Transitional Justice and the Erosion of Judicial Independence’, Contemporary Politics 27 no. 5 (2021), 561–2.

102 ‘Nepal: Transitional Justice at Crossroads’, Advocacy Forum (January 2014), http://www.advocacyforum.org/downloads/pdf/publications/tj/transitional-justice-at-crossroads-2014.pdf

103 TRC Act (2014), The Enforced Disappearances Enquiry, Truth and Reconciliation Act, 2071 (May 11, 2014), 25(a),(b) & (c)).

104 Ibid., 29(1) & (2); Jeffery, Negotiating Peace, 331.

105 Ibid., 30(1)).

106 Jeffery, Negotiating Peace, 329.

107 TRC Act, 2(3)(3)(b)).

108 Jeremy Sarkin and Ram Kumar Bhandari, ‘Why Political Appointments to Truth Commissions Cause Difficulties for these Institutions’, Journal of Human Rights Practice 12, no. 2 (2020), 447.

109 Ibid., 461.

110 ‘Fake Transitional Justice consultations: How long can the government Fool Victims? (Kathmandu: Advocacy Forum, 2020), 18.

111 ‘Bhatta Recommended as TRC Chief, Subedi as CIEDP Head’, myRepublica (January 19, 2020), https://myrepublica.nagariknetwork.com/news/bhatta-recommended-as-trc-chief-subedi-as-ciedp-head/

112 Ibid.

113 ‘No Law, No Justice, No State for Victims: The Culture of Impunity in Post-Conflict Nepal’, Human Rights Watch (November 20, 2020).

114 Annual Report: Synopsis (2020–2021) (NHRC, Lalitpur, 2021), 24.

115 A Precise Report on the Recommendations and State of Implementation in the 20 Years of NHRCN (May 2000 – June 2020) (Lalitpur, September, 2020), 9.

116 Ibid., 24.

117 Ibid.

118 Ibid., 30.

119 ‘Nepal: Carry Out Rights Panel’s Recommendations’, Human Rights Watch (November 3, 2020).

120 Ibid.

121 Binod Ghimire, ‘Anup Raj Sharma: we could not be bold enough to pressurise the government’, Kathmandu Post (September 17, 2019), https://kathmandupost.com/interviews/2019/09/17/anup-sharma-we-could-not-be-bold-enough-to-pressurise-the-government

122 ‘No Law, No Justice’.

123 ‘Nepal 2020: Human Right Report’ (Washington DC: US State Department, 2021), 19.

124 Ghimire, ‘Anup Raj Sharma’.

125 The NHRI Nepal Joint Submission for the Third Cycle Universal Periodic Review of Nepal (Lalitpur: NHRC 2020), 3.

126 ‘Nepal: New Appointments Undermine Independence of Rights Oversight Body, UN Experts Warn’, UN News (April 27, 2021).

127 Ibid.

128 Chun Bahadur Gurung, ‘Nepal is Attempting to Cripple the National Human Rights Commission’, The Kathmandu Post (August 25, 2019), https://kathmandupost.com/columns/2019/08/25/the-government-is-attempting-to-cripple-the-national-human-rights-commision; Paul Gready and Simon Robins, ‘Rethinking Civil Society and Transitional Justice: Lessons from Social Movements and “New” Civil Society’, International Journal of Human Rights 21, no. 7 (2017): 969.

129 OHCHR, Nepal: UN experts express concerns for independence and integrity of the NHRC, April 27, 2021, https://www.ohchr.org/en/press-releases/2021/04/nepal-un-experts-express-concerns-independence-and-integrity-nhrc

130 Binod Ghimire, ‘The Impending NHRC Downgrade’, The Kathmandu Post, August 30, 2023, https://kathmandupost.com/national/2023/08/20/the-impending-nhrc-downgrade