Whilst superficially the two contexts appear rather different in terms of history and the status of their transitional justice processes, in terms of the situation of victims there are remarkable similarities. Here, those correspondences are reviewed, considering both the political level and the everyday worlds of victims.
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In this chapter the two contexts have been discussed in terms of the socio- economic and cultural background in which conflict and disappearance occurred. Both Nepal and Timor-Leste are characterised by poverty and marginalisation which served to both provoke and prolong conflict and exacerbated the impact of violations. In both contexts traditional understandings, of religion and spirituality, of family dynamics and the subservience of women play a role in how communities respond to the impact of political violence. In Nepal longstanding exclusion on the basis of ethnicity and caste has both defined the nation‟s social and economic dynamics and exacerbated the violence, both structural and direct, to which the marginalised have been subject. The response to the histories of violence in the two states has been similar: elite led processes reference a global discourse of rights, but political agendas that seek to minimise prosecutorial process determine how that process unfolds. In Timor-Leste a ten year transition has been a laboratory for contemporary concepts of transitional justice, led by a truth commission that put the metaphor of truth as healing, in the tradition of the South African TRC, at the heart of its work and referenced traditional restorative process. In Nepal the same universalist discourse has been frustrated by political stalemate and a desire for politicians and senior combatants on both sides to minimise the chance of any retributive process. In both contexts political expediency has driven which mechanisms are created and, in Nepal‟s case, has ensured no significant process at all. Victims‟ agendas remain as marginalised as victims themselves in both contexts, largely unheard in the vigorous debate between rights organisations and politicans.
The ten years of transition in Timor-Leste have led to a small number of prosecutions, a much vaunted truth and reconciliation process and the world‟s first bi- national truth commission. That the transition has taken this course is a result of the decisions of the small number of persons who constitute the leadership of the state, supported by an array of international advisors. They determined that a broad process of prosecutions, inevitably targeting those at senior levels of the Indonesian Government and security forces, would not be in the best interests of Timor-Leste. (It is also possible that those close to Fretilin and Falintil during the conflict are concerned that judicial process may also target them and their erstwhile colleagues, many now in senior roles.) This position is contested by those articulating the global human rights discourse, who argue that retributive justice and an end to impunity are essential for the country to move beyond its violent past. This remains however a normative statement, with little evidence to support it and no empirical data to confirm assertions that victims or the general population do indeed prioritise judicial process. Transitional process in Timor-Leste is not
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evidence-based, but has been driven by largely political decisions of the leadership, with little mandate for such action.
That a process emphasising reconciliation was prioritised in Timor-Leste was justified by a need to go beyond the purely retributive, and the leadership has emphasised development, social justice and „looking to the future‟. This approach chimes with restorative approaches that have increasingly become part of transitional justice (Leebaw, 2003; Llewellyn and Howse, 1999) and the Community Reconciliation Process has been lauded as both restorative and based in indigenous tradition (Babo- Soares, 2004; Zifcak, 2005; Ximenes, 2004). It seems likely however that reconciliation as a goal, and perhaps as the principal goal, of Timor-Leste‟s transitional justice process is prompted less as a considered position of the Timorese leadership than a convenience that coincides with and justifies their pragmatic approach to avoiding prosecutions.
In Nepal, the transition is being led by those who fought the war, with the traditional parties and the Maoists alternating in coalition Governments since the 2008 elections and both aware of their unreformed military constituencies (the Nepal Amy and the People‟s Liberation Army, respectively). As such there is a quite explicit constraint on the process that militates against prosecutions in the short term. In Nepal one sees the same polarisation of attitudes toward transitional process as in Timor-Leste, with the authorities choosing to emphasise compensation over judicial process, and a human rights community with many allies internationally demanding that retribution provide the driving logic of the process. This sterile debate has resulted in no process at all in the five years since the end of Nepal‟s conflict, abetted by a political stand-off that threatens the entire peace process. The presence in Nepal of a vigorous civil society and a powerful donor community that has put human rights and accountability high on its agenda has prevented political elites from proposing the reconciliation led process that has unfolded in Timor. From the perspective of the current political impasse it is difficult to see a way forward that both satisfies the expectations of those supporting the rights- based development of the „new Nepal‟ and avoids legislators and minsters condemning themselves to prosecution. Nepal is a classic test of the utility of the discourse of transitional justice in advancing peace and justice (in its broadest understanding), without violating the norms that a global rights regime imposes. It can thus be seen that the political constraints on the two processes have different sources. In Timor-Leste the domestic leadership seeks to avoid antagonising a powerful neighbour, while in Nepal
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there is tension between an elite instinct for self-preservation (on both sides of the conflict) and the expectations of the human rights agenda. The net result of these constraints is similar however: as in Timor-Leste, there is unlikely to be a broad process of prosecutions in Nepal in the short or even medium term and any truth process is likely to be highly constrained.
Beyond elite agendas
Even though the two transitions studies here played out in very different ways, the processes that occurred have one very clear similarity: all come exclusively from elites. In Timor-Leste, the „statebuilding‟ process that drove the creation of the UN courts and CAVR was a UN-led process:
The UN Administrator is nominated by the Secretary- General with little or no consultation with those who are to be administered. […] The question remains open how the UN can exercise fair governance with absolute powers in societies recovering from war and oppression. (Sergio Vieira de Mello, quoted in Beauvais, 2001: 1101)
The UN administration‟s nod to political participation was through the creation of a 15 person National Consultative Council containing the leaders of the resistance, other political parties and a representative of the Church, later expanded to a 36 person East Timorese National Council. It will be argued here that in addition to the explicitly UN driven processes, such as the Serious Crimes Process, CAVR was itself both created according to an imported model and steered by foreigners and consultation with non- elites was minimal (Section 7.5).
In Nepal, the discourse of transitional justice is driven by external donors and rights agencies, national and international: this study will determine what resonance there is between this agenda, largely ignored by Government, and that of victims. Consultation with victims and the general population has taken the form of donor- supported visits of Ministry of Peace and Reconstruction personnel, constituting meetings of a few hours, to a handful of regional headquarters (UN General Assembly, 2009). Human rights agencies have also organised their own consultations (e.g. ICTJ and Advocacy Forum, 2008), but these appear to have had little impact on policymakers. The limited process that has occurred has been determined by the succession of governments since 2008, led by the parties to the conflict. These have attempting to
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prioritise those efforts that can serve as instruments of political patronage, such as relief payments (Advocacy Forum, 2010A) and postpone or abandon those elements linked to truth and justice that might compromise the impunity of those in Government. The lack of investigation has been explicitly linked to political power:
Such failures are due at least in part to the continued sway of the army and Maoist forces, and to police knowledge that the Nepal army (NA) and political party officials, including Maoist officials, are unlikely to co-operate with investigations. (The Guardian, 2010).
The political constraints that limit transitional process arise because those in power are able to impose their own agenda. Likewise those who articulate the rights discourse are largely indigenous elites, who have benefitted from the education that gives access to it, or foreigners. Thus, the entire debate around transitional justice is one conducted among elites that excludes ordinary people, particularly the rural majority in both states. This study is premised on the assumption that victims have a particular stake in transitional justice processes and post-conflict recovery more generally (see Section 2.1). Yet, in the decade of process in Timor-Leste, neither victims nor the population have been consulted at any level concerning their goals for transition. Similarly, in Nepal, consultation with victims has to date been cursory. It remains the most common practice globally that such process is elite led and this has led to a narrowing of the transitional agenda, creating process that is violation and perpetrator centred, rather than victim-centred.
The impact in Timor-Leste of the decade of transitional process on victims generally and families of the Missing in particular remains unclear. This study seeks to use empirical data from both contexts to understand what victim goals for transitional process are, and in Timor-Leste to understand the extent to which the mechanisms that have constituted the transitional justice process have satisfied those goals. This research is premised on learning from the ten year transitional justice process in Timor-Leste in ways that can inform the development of a victim-centred approach to addressing the issue of missing persons in Nepal and in other contexts. The methodology through which this is done is outlined in the following chapter.
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