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| April 20, 2007 | |||||
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The Struggle for Justice in Nepal
By Thomas Bell |
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“I do believe in the law,” she said. “But I had to take suggestions from friends, since I didn’t know a lot. I didn’t have a clue what to do, and I still don’t. I just worked. I was told that no one would help, no political parties or organisations could be trusted. That’s why I didn’t lodge a police complaint.”
Ambika was driven from her village because the Maoists feared she would take revenge. She is not educated, and she said that because she was not involved in any political organisation she did not really know what human rights were. She tried to explain what they meant to her.
“Human beings do not have the right to kill another human being, nobody has that right,” she said. “You have the right to do only good things. Sometimes, I think that I have the right to do the same as they did to my father. My father was chopped into 14 pieces and his body was put in a burlap. We did not even get to see him. They started chopping from his legs. I want to chop them into 14 pieces, but I guess I don’t have that right.”
There are many people like Ambika Danuwar trying to respond to the crimes of Nepal’s ten-year-long war. One such is Nur Prasad Adhikari. On March 7 this year he took a can of petrol and burnt down a temporary “welcome arch” which had been built for a visit by the Maoist leader Prachanda to the town of Pokhara in central Nepal. “I have been seeking justice. My brother was killed for no reason,” he told the police. Another is Jai Kishwor Labh, a lawyer from the southern town of Janakpur. His son disappeared in police custody. “Peace is not possible if the people killed are not recognised,” he says. “What will their family members do? They will revolt. So I think peace is not possible in Nepal at present.” According to Jai Kishwor’s arithmetic, each of the war’s 13 000 victims has five angry relatives. An Unresolved Legacy
The Nepalese civil war started in 1996 when the Maoists, one of many hitherto peaceful communist factions, launched a violent revolution. Six years earlier, multi-party democracy had replaced absolute monarchy, but the rebels claimed that the country remained essentially feudal and governed in the interests of a corrupt elite. The conflict undermined the fledgling democracy, which had made some progress in providing health, education and other basic services, sending development into reverse. From 2002 King Gyanendra began regaining the powers that the palace had ceded to democracy more than a decade earlier, culminating in an army-backed coup in February 2005. The current peace process began when the democratic parties and the Maoists joined forces to overthrow the royal regime through street protests in April 2006.
The peace which Nepal has so far achieved is temporary and incomplete, but it includes some acknowledgement that it is necessary to address past crimes. On 21 November 2006 the Maoists signed a “Comprehensive Peace Agreement” with the governing coalition of democrats, and the document contains several vague provisions which relate to transitional justice. Earlier this month, the Maoists joined the government, and five out of 17 cabinet ministers are now from their party. Yet the South of the country experiences frequent outbreaks of violence as ethnically based political parties demand autonomy. In January Maoists killed a member of the Madhesi Peoples’ Rights Forum, the largest of these groups. Two months later, members of the Forum killed at least 29 people, most of them Maoists.
Ending Nepal’s dismal history of impunity could help end the cycle of violence, but the needs of justice must take their place among the many competing crises and political priorities. Elections for an assembly to write a new constitution are the final objective of the peace process but, amid violence in the South and inertia at the centre, holding them remains an enormous challenge. Originally due in June, the poll has already been postponed until autumn at the earliest. In the area of transitional justice, as with so many other pressing issues, nothing is likely to happen quickly.
Transitional Justice for Nepal?
The notion of transitional justice acknowledges that in countries emerging from conflict legal systems will be weak, the political situation will be delicate, and some kind of irregular—or transitional—judicial arrangements may be needed. A transitional justice process in Nepal might include some combination of a truth and reconciliation commission and prosecutions, and there are several potential benefits if the outcome is credible. It could provide victims with recognition and “voice”, perhaps reducing the likelihood that they will be driven to take violent revenge. The data gathered could be the basis for financial reparations to victims. The process of enquiry could help expose the dynamics that drove the conflict, or lead to reform in institutions such as the police to make a repeat less likely. Setting a precedent in which offenders are exposed and punished may also discourage future abuses. The official record left behind could make it harder for particular interests to rewrite the history of the conflict to their own advantage. The Maoists already teach a badly skewed curriculum in some schools, and the royal governments of the past did the same.
As part of its advocacy for a truth and reconciliation commission in Nepal, the United Nations Office of the High Commissioner for Human Rights (OHCHR), which has a large presence in the country, has sketched out a possible methodology. First, witness statements would be collected from all over the country and investigations pursued into high profile cases and “key thematic areas”. Public hearings would be held in all regions and finally a report published. It would contain recommendations for institutional reform and propose a list of important cases that should be prosecuted. Everyone agrees that any system must be specifically designed to meet Nepali circumstances, and the local legal NGO Advocacy Forum has begun a survey of victims’ wishes for that purpose. The Peace Secretariat, a government body, held a one-day conference on the subject in February 2007, but in general progress has been slow or non-existent.
Nevertheless, it is possible to foresee some of the requests that victims are likely to put forward. “First of all, memorials should be made by the state for those persons who were killed by the state,” says Jai Kishwor Labh, whose son Sanjiv was a 24 year old, Left-wing student when he disappeared in police custody in 2003. A common demand among relatives is that the dead should be declared “martyrs”. Jai Kishwor is a lawyer whose life has been consumed by his son’s case. His simple home on a muddy lane is plastered with human rights posters. Amnesty International has pursued the case, and Jai Kishwor travelled to Geneva to address the UN working group on disappearances. “Compensation should be given, because some families have been totally wrecked,” he says. “I myself have spent 350,000 Rupees [US$ 5000] on legal proceedings. I have been financially ruined.” He is certain his son is dead, but he has been unable to discover anything about his fate. (The army say Sanjiv was killed in a clash the day he was arrested, but witnesses saw him alive in custody a year and half later.)
Families of the Disappeared The needs of the families of the disappeared will be important if justice is ever done in Nepal. For a while, the country had the highest number of disappearances in state custody of any country in the world and the Red Cross still has over 800 unresolved cases. In many of them families are unable to “move on” and destitute without their breadwinner. There are also an unknown number of displaced people, probably running into tens of thousands. The Maoists in particular continue to deny their right to return home, despite repeated commitments since the end of 2005, and their property may be lost forever. In cases such as these, the suffering caused by the war remains immediate and tangible and there is a clear case for financial compensation.
Prosecutions, at least in certain important cases, are another key objective of campaigners. One such case is the murder of Maina Sunwar, a 15 year old girl who was taken hostage by the army and tortured to death in 2005. The disappearance in December 2003 of 49 Maoist suspects from a torture centre run by the Bhairavnath Battalion of the army in northern Kathmandu is another big case.
Some potential pitfalls of transitional justice in Nepal can also be identified already. It is glib to imagine that simply by recalling the crimes they have suffered victims will automatically achieve “closure”. A badly designed process could just as easily make them feel worse. Financial compensation could be used as a tool of political patronage, distributed to some groups at the exclusion of others, or used to buy off victims without providing any real justice. In Chitwan district in southern Nepal the Maoists have been extorting money from some locals in order to pay compensation to others whose relatives died in a notorious bus bombing. There is also a very real danger that war criminals, who continue to hold senior positions on both sides after the peace deal, would attack witnesses or plaintiffs. In 2004 the Maoists murdered Ganesh Chilawal, founder of the Maoist Victims Association. Victims and witnesses of state atrocities have been threatened and disappeared. Some powerful individuals may ultimately prefer war to justice.
A Culture of Impunity
Nepal’s culture of impunity is as firmly entrenched as any feature of the political and legal systems. Powerful people have always been above the law. No one has ever been convicted in a civilian court of a human rights abuse and only one person—a junior member of the paramilitary Armed Police Force—has been brought to trial so far (the case continues). Torture is not a crime under Nepali law, there is no specific law against disappearance and there is no legal basis for attributing responsibility up the chain of command.
It is little surprise that victims and activists are deeply sceptical of the government’s, the army’s and the Maoists’ commitment to justice. Leading figures in the democratic parties, from Prime Minister Girija Koirala down, were in government for much of the decade-long Maoist war. Many of the worst abuses were committed under democratic governments, before the king took over, and every major party was in government at some point during that period. The senior ranks of the security forces have barely changed and the Maoists’ leadership has remained constant.
Against these powerful interests the coalition of forces pressing for justice looks weak, although it can be assumed to enjoy the passive support of the majority of Nepalis, who appear to be disaffected with the abusive methods traditionally and habitually practised by their rulers. The victims and their relatives form the principal lobby, although they are divided between victims of the Maoists and the state. Victims’ groups have staged protests in Kathmandu and elsewhere but failed to put enough pressure on the government to force action; even supporters of the democratic parties who were dispossessed by the Maoists have failed to secure meaningful support. Nevertheless, the victims have important allies in the powerful and robust independent media, which has publicised many cases and exposed official inaction. Domestic NGOs have been effective in raising the status of human rights issues and documenting cases. Others are doggedly pursing legal action which keeps up the pressure and creates at least a minimal sense of progress, notwithstanding the lack of convictions. All of these activists place great importance upon the moral and practical support of UN agencies, international NGOs and foreign governments.
The influence of these forces was enough to secure at least ten points in the 2006 Comprehensive Peace Agreement which relate to transitional justice. They are vague, especially in a context where political commitments are rarely honoured, but Nepali activists interpret them to refer only to a truth and reconciliation style process and not to prosecutions. (Nevertheless, the UN argues, States are obliged under international law to prosecute those responsible for war crimes.) There is no mandatory provision for transitional justice in the 2007 Interim Constitution under which Nepal is currently governed. Mandira Sharma, of the legal NGO Advocacy Forum, is one of the country’s leading human rights lawyers. She was involved in drafting retroactive provisions for the interim constitution explicitly criminalising torture and enforced disappearance. Those sections were tossed out. Activists warn that the Constutional Assembly, when or if it is elected to write a permanent constitution, could follow the recent example of Afghanistan and declare an amnesty for past war crimes.
Within Nepali politics, the precedents are dismal. After the establishment of democracy in 1990, the new governing coalition commissioned an enquiry into the former royal government’s harsh repression of street protests in which scores of demonstrators were killed. The Malik Commission’s report implicated several members of the old regime in the deaths. But no action was taken because, according to the common view, the victors hoped to avoid a dangerous fight with royalists who were at bay but not defeated. Many of those men returned to government when King Gyanendra seized power in the 2005 coup. Gyanendra’s government was overthrown in April 2006 by massive street protests in which 21 people died and thousands were injured. The Maoists and democrats who organised the protests now dominate post-conflict Nepal, and they again set up an enquiry (known as the Rayamajhi Commission) into the killing of protestors. But although the commission’s report is known to lay the blame upon several leading figures in the royal government and security forces from the King down, no action has been taken and the findings have not even been published. Apparently the status quo, and the many obscure bonds that bind the political classes, remain too strong for the government to act. Besides, the precedent might rebound to their disadvantage. And there is no law that provides for prosecuting a king.
The Judiciary and Police The judiciary also has a poor record. Last year, the Supreme Court dismissed three allegations of contempt of court against senior army officers for providing misleading evidence in cases of disappearance. There were hopes of progress when the Court formed a committee in August 2006 to investigate four cases of disappearance in state custody. The 49 cases of disappearance from the Bhairavnath Battalion were later added to its remit. According to a recent report in the Kathmandu Post, the committee’s investigation into one of the original cases led them to conclude that the army had tortured the man involved to death, then threatened the police to force them to destroy the evidence. In a confidential report to the Court, the newspaper said, the committee recommended murder charges against several men in connection with this case and further action in the three other original cases, each of which was also found to be murder.
However, committee members have complained that they have not been given the resources to conduct a meaningful enquiry into the Bhairavnath disappearances. In March this year they had their reporting time dramatically curtailed to April 13, making it impossible, they said, to discover anything in those cases. Pleas for a three month extension were ignored.
The problems start lower down. To begin a criminal proceeding, a First Information Report (FIR) must be filed with the police. “You can imagine how the police respond if the FIR is against them,” says Mandira Sharma. FIRs are not accepted, not investigated or not passed on to public prosecutors. “Victims do not have direct access to the courts. The existing criminal justice system can not address the problem,” she says.
Resistance from the Army Not surprisingly, the army are battling to evade responsibility. According to their Human Rights Directorate, 283 soldiers have been punished in 102 cases of rights violations. Sentences apparently range from ten years’ imprisonment to “warnings”. But the army refuses to provide details of its secretive courts martial to the UN’s OHCHR, and what is known suggests extreme leniency towards offenders. For example, in the case of Maina Sunwar, the 15 year old school girl tortured to death in army custody in 2005, three soldiers including Colonel Babi Khatri were sentenced to six months in jail and Col. Khatri remains in uniform. In many cases involving serious crimes, courts martial have imposed weak penalties such as loss of rank or a bar on promotion. In 2006 the OHCHR produced a detailed report on torture and disappearance from the Bhairavnath Battalion’s Kathmandu headquarters. No prosecutions have yet taken place. Although the army has produced an internal report on Bhairavnath, a UN source who has seen it says it is “not satisfactory”.
Campaigners have focussed on the Maina Sunwar case to seek further prosecutions. Last month, forensic experts exhumed a body believed to be hers from the grounds of the training centre used by the army for its UN peacekeeping missions. Because the army says that prosecutions have already taken place, it is raising double jeopardy concerns to argue against further action. Shocking as it is that a facility associated with UN peacekeeping is linked to such crimes, the army’s peacekeeping work may in fact provide useful leverage. UN missions are extremely lucrative, and many believe that a perceived threat to this work helped persuade the army to withdraw their support from King Gyanendra in 2006. The army has already ruled that any soldier responsible for human rights abuses is barred from well paid overseas missions.
The Maoists are also resistant to demands for justice. According to Mandira Sharma, there have been instances of Maoists preventing victims from travelling to police stations to register complaints against state forces. “They know that when these kinds of cases begin to be investigated, very soon there will be cases against them as well,” she says. They also appear unwilling to punish their own members. One of the Maoists’ most notorious crimes was the bombing of a crowded bus at Madi in Chitwan district in 2005 which killed 35 people, mostly civilians. Besides extorting money to pay compensation to some victims, the UN believes the Maoists sentenced some of those responsible to only “two or three months of ‘corrective punishment’”.
Finally, there are the problems of preserving evidence and protecting witnesses. According to an article in the Kathmandu Post in March citing the National Human Rights Commission (NHRC), civilians, Maoists and the police have all been involved in exhumations which could irreparably damage evidence. The problem partly reflects the demand for justice—the NHRC say they have received 10 requests from locals for assistance in investigating grave sites but do not have the capacity to respond. Meanwhile, campaigners worry that sites are vulnerable to those who with an interest in destroying evidence. Nothing has been done in the crucial matter of witness protection.
The Need for Assistance
Unless a transitional justice process in Nepal is designed with sensitivity to the country’s political situation, there is no guarantee that it will succeed in promoting reconciliation. Understandably, most attention within the country is still focussed on achieving a more stable peace through elections to a constitutional assembly. With such a range of daunting problems there is clearly a need for international assistance. The OHCHR is already providing some help, through advocacy and by disseminating information on international experience. More broadly, the UN enjoys great prestige in Nepal particularly through its monitoring role in the peace process, which has been essential in developing trust between the parties.
Some form of international involvement, perhaps from the UN, will be needed if transitional justice mechanisms are to have the credibility to secure participation from victims and produce results that are widely accepted. Some local campaigners are already calling for a “hybrid court” which would include foreign and Nepali judges, along the lines of the one currently operating in Sierra Leone. Although Nepal is not a signatory to the International Criminal Court, others would like to see the Security Council follow the precedent it set with Sudan and recommend prosecutions at the ICC if offenders escape scrutiny at home.
Thomas Bell, a journalist based in Kathmandu, writes on Nepal for the Daily Telegraph, The Economist and The South
Related Chapters from Crimes of War: What the Public Should Know: Civilians, Illegal Targeting of International vs. Internal Armed Conflict
Related Links:
United Nations Nepal Information Platform
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