The arrest of Nepalese army officer Colonel Kumar Lama by the British police in 2013 in London – where he was on a private visit – sent shockwaves across Nepal. It was the first instance that someone accused of committing grave human rights violations stemming from a decade-long Maoist war in Nepal was arrested and tried abroad.
Although Lama was ultimately acquitted on all charges by a British court on September 6 after having spent three years in custody, his arrest showed that ‘crimes against humanity’ transcend national borders.
This was the reason current prime minister and leader of the Communist Party of Nepal (Maoist Centre) Pushpa Kamal Dahal ‘Prachanda’ was alarmed when following the passage of Nepal’s new constitution on September 20, 2015, India decided to raise war-time cases in Nepal at international forums like the UN’s Universal Period Review.
India wanted to put pressure on Dahal and his Maoist party to ditch the old Oli coalition, which was perceived as anti-India and anti-Madhesh. It had its way when the Oli government was removed in early August. However, with a more ‘India-friendly’ government in place in Kathmandu, India is also unlikely to again raise the issue of war crimes at international forums. Thus, transitional justice in Nepal has become a political bargaining chip, both at home and abroad.
This wouldn’t have surprised the thousands of conflict victims who have waited for justice for over a decade since the signing of the historic Comprehensive Peace Agreement (CPA) in 2006 between the mainstream parties and the Maoists, which formally ended the Nepalese civil war. The conflict victims’ quest for timely justice has since been repeatedly stymied, but they refuse to give up.
Cases of concern
The conflict victims have filed nearly 50,000 cases with the Truth and Reconciliation Commission (TRC), while another 3,000 have been filed with the Commission of Investigation on Enforced Disappeared Persons. The cases relate to around 17,000 people who were killed and another 1,500 who were disappeared by the government and the Maoists. Some of these cases are spurious, but according to the members of the two commissions, most appear genuine. The formation of the two bodies and the process of filing of complaints, are however likely to be the easiest steps in what could be a long and arduous process of transitional justice in Nepal.
The two transitional justice bodies, which were supposed to come into existence within six months of singing of the CPA, were only formed only in 2014. Transitional justice was pushed to the backburner as the political parties bitterly debated the issue of integration (into security forces) and rehabilitation of former Maoist combatants. While the other parties only wanted a token entry of Maoist combatants into national army, the Maoist party wanted a more dignified integration.
The deadlock in the peace process was finally broken in 2012 when former Prime Minister Baburam Bhattarai decided to send the Nepal Army to take over the UN-monitored cantonments where the former Maoist fighters were lodged, thereby ending the ‘one state, two armies’ situation. It then took two more years for the twin transitional justice bodies to be formed.
It took this long for them to materialise because during the process of their formation there was immense pressure from the national and international rights watchdogs to not compromise on the rights of conflict victims in the name of reconciliation.
It was in this context that the then government, headed by Chief Justice Khil Raj Regmi, passed an ordinance on the formation of the twin commissions in March 2013 – at a time when the first Constituent Assembly had been dissolved and there was no parliament. The ordinance came under withering criticism of the human rights community. It was deemed to have been brought without the consent of conflict victims and in a roundabout language, the community accused, was given ‘blanket amnesty’.
Another twist in the never-ending transitional justice saga came in January 2014 when the Supreme Court of Nepal termed the ordinance ‘unconstitutional’ and asked the government to amend it in line with international standards.
Following the Supreme Court verdict, the government of Sushil Koirala tabled a new Bill on transitional justice in the parliament, which was then passed in July 2014. The human rights community and conflict victims were once again incensed, for the new Act was in substance no different from the ordinance that had recently been deemed unconstitutional.
“Nepal’s TRC Act is fundamentally flawed and could leave thousands of victims of conflict-related violations without access to the justice they deserve,” Amnesty International said in a statement. UN Office of the High Commissioner on Human Rights pointed that the TRC Act did not conform to Nepal’s international legal obligations, including in that it allows for amnesty for crimes committed under international law.
In February 2015, the Supreme Court once again struck down the amnesty provision in the TRC Act, thereby removing the discretionary powers of the two commissions to recommend amnesty for those involved in grave rights violations. The court ruled that the two commissions could not do so without the consent of the conflict victims for reconciliation. This pleased the human rights community, but a big section of the Nepali political class saw such ‘legalistic’ interpretation of transitional justice as dangerous.
Footnotes in history
The Maoist party that fought in the civil war has since splintered into many outfits, but they are all united against what they see as a conspiracy of the ‘dollar-earning’ human rights community to corner them on war crimes. The Nepali Congress, the biggest party in parliament, is also more or less in favour of blanket amnesty. It fears that some of its senior leaders like Sher Bahadur Deuba and Krishna Prasad Sitaula, who were involved in various security operations against the Maoists during the insurgency, could also find themselves in the dock. They have the backing of a big section of the left-leaning intelligentsia, which prioritises reconciliation in the war-ravaged country over justice for conflict victims. For them, the Maoist war is a chapter in the history of Nepali that is best closed.
The other school of thought – held by most conflict victims, the human rights organisations, the judiciary and a section of the right-leaning intelligentsia – is that pardoning the perpetrators of heinous crimes from the conflict period will promote impunity as people will see that anyone can take up violence to achieve political goals and then get away with it.
According to this school of thought, it is in Nepal’s best interest to ensure that the conflict victims have a say in transitional justice and the whole process is done in line with international norms. Otherwise, there will be additional cases like the arrest of Lama on foreign soil. They point out that tomorrow it could be Deuba who gets arrested abroad on charges of crimes against humanity.
Besides the differences on who should be prosecuted on war-time cases, the other area of concern is the two-year timeframe laid down by the two transitional justice bodies. According to the TRC Act, the mandate of the commissions can be extended by a year, but the shared feeling is that a year’s extension will still be insufficient for the kind of painstaking investigations that the two bodies will have to undertake in the thousands of cases.
Meanwhile, the TRC Act needs to be made compatible with the latest Supreme Court verdict, which again is a tricky task. Among other things, the court has categorically said that the criminal cases that are sub judice at various courts cannot be transferred to the two commissions. This could be problematic as it would mean that some senior Maoist leaders like Agni Sapkota and Bal Krishna Dhungel might have to be jailed for their war-era crimes.
So it will not be easy and it will not be quick.
Realistically, notwithstanding the concerns of the human rights community and the conflict victims, most of those accused of committing grave rights violations during the conflict period are likely to be pardoned. In cases where rights abuses are established, there could be monetary compensations. The conflict victims could also be given a platform where they can freely air and record their views, but that will be it. Those who expect more from the Nepali transitional justice process will be disappointed.
Biswas Baral is a Kathmandu-based journalist who writes on Nepal’s foreign policy. He tweets @biswasktm.