Witness sensitive practices in international fact-finding outside criminal justice: lessons for Nepal

This chapter considers the security implications of quality control in fact-finding, particularly with regard to truth commissions in transitional justice contexts. The chapter addresses the lessons provided by variant levels of quality control at fact-finding commissions for the proposed Commission on Investigation of Disappeared Persons, Truth and Reconciliation in Nepal. In doing so, I draw on research conducted in Kenya and South Africa funded by the Institute for Security Studies and the Special Court for Sierra Leone, as well as upon my experience working at Sierra Leone’s Truth and Reconciliation Commission in 2003, and Special Court in 2008. I also draw on research conducted for the International Centre for Transitional Justice in Nepal in 2011. The chapter considers the variance in threat to witnesses and to wider communities of Commissions employing variant quality control in fact finding under circumstances of uneven political, economic and social risk. I take particular consideration of the impact of a commission’s mandate and capacity upon the quality of fact-finding employed, particularly practices relating to the security of persons that a commission interacts with. In doing so, I consider how a potential Nepali truth commission might balance the physical and psychological security of witnesses and sources, as well as the threat of further instability, with the imperative to find facts and to respect the rights of implicated persons to their reputations. Leading civil society elements in Nepal have called for prosecution of crimes committed during the conflict. However, they have not articulated the level of fact-finding quality control required for independent investigation and prosecution that does not jeopardize witness security. There are a number of critical variables that inform the consideration of the need to establish a historical record, as well as the potential implications of doing so. Unlike the peace versus justice debate that considers a criminal process, a fact-finding exercise may have no punitive function and does not need to accord the same level of rights to accused or implicated persons. It may therefore employ anonymity throughout and may decline to attribute individual responsibility. This chapter considers how and when a Nepali Commission might apply various investigative and reporting practices given the lessons of commissions elsewhere – what is the appropriate level of ‘quality control’ for fact-finding in Nepal?