How Nepal’s transitional justice process, the only of its kind in South Asia, is being undermined

Question (from BB Gurung, Bhoje Village, Lamjung District): “One expects to kill and be killed in a conflict, but I want to know why you slit throats when you take the lives of people.”

Answer (by Pushpa Kamal Dahal, Maoist Supremo): “… Let me make clear, six months after we started the people’s war, I myself wrote an important circular that went down to the grassroots, saying that if a situation arose that you have to annihilate [sic] someone, it should not be accompanied by torture. My circular stated that even if it becomes necessary to eliminate [‘safaya’] someone, you should not torture…”

From a BBC live broadcast on September 8, 2006, over BBC Nepali Service, hosted by Suman Kharel. Listen here.

This question-answer makes clear the heinous intent of Pushpa Kamal Dahal, chairman of the Communist Party of Nepal (Maoist), and provides further proof of his culpability in the extra-judicial killings of the ten-year long internal conflict of Nepal that ended in 2006. The exchange also confirms that he had and owned ‘command responsibility’ for the actions of the cadre, who were given written instructions to carry out murders (preferably without torture).

Societies that strive for civilisational values deny citizens the right to take the law into their own hands and carry out extra-judicial killings. Further, at the time that Dahal was eloquently conceding his responsibility for instructing his cadre to kill, Nepal’s Constitution of 1990 had already abolished capital punishment, which would have allowed the state and judiciary to conduct executions. And here was the Maoist chieftain blithely conceding that extra-judicial killing was his modus operandi.

Murder-with-torture

Even more than their “people’s liberation army”, the main tool used by the Maoists to try and command the villages during the conflict was safaya, elimination. It was the course of action by the rebels, against stalwarts in a community who had independence of spirit to challenge the Maoist writ – it could be a clan elder, teacher, priest, journalist or a functionary of the Nepali Congress or Communist Party of Nepal (United-Marxist Leninist).

While Dahal was the supreme commander of the Maoists, ultimately responsible for any and all acts of terror conducted by the rebel force, the decision on whom to eliminate was taken by the so-called people’s government (jana sarkar) headed by Baburam Bhattarai, the ideologue of the rebel group.

The “formal” decisions on safaya were taken by the jana sarkar and/or its jana adalat (people’s court), with the diktat pasted on walls and read out to terrorised villagers. Killings would often be preceded by public torture, or the victim would be buried while still breathing, as is said to be in the case of Dailekh journalist Dekendra Thapa.

Dahal’s personal attitude towards killings is something that Nepali history and citizenry should never forget, but today the BBC Nepali Service interview of 2006 is even more relevant because the bill to amend the transitional justice law that has been placed before Parliament follows the same brutal philosophy that seeks to distinguish between a murder from a murder-with-torture.

Nepal’s Supreme Court directed eight years ago that the Transitional Justice Law of 2076 be amended and be brought in line with humanitarian principles and international practice, but there are numerous aspects of the bill presented by the Minister for Law and Constitutional Affairs Govinda Sharma Bandi that make it perpetrator-friendly. Either the bill should be amended with reference to a comprehensive checklist, or it should be withdrawn.

Primary among the many grievous faults of the bill is the distinction it makes between a killing and killing by extreme, inhumane process, the categorisation clearly an attempt to let perpetrators off the hook. Against the background of the BBC Nepali Service interview, it is clear that this provision is inspired (more likely directed) by Pushpa Kamal Dahal and his interpretation of the act of killing, where he drew distinction between killing-after-torture and the high moral ground held by those who just simply – killed.

Time travel

Given that 16 years have passed since peace returned to the broken society, we need to recall and keep perspective on what Nepal’s citizens suffered and why transitional justice is important in the only corner of South Asia where it is being implemented. Seven to eight citizens were being killed every day during the conflict in 2005, and the public was caught in the pincers of the rebels and state-security, the latter too having descended to the level of atrocities.

Inattentive people, whether national or international, find it convenient to believe that the Maoists were a visionary force that decided to take on an autocratic royal regime, whereas they had picked up arms against a fledgling parliamentary democracy as decreed by the 1990 Constitution. The first shots of the “people’s war” rang out in February 1996, by a Maoist band that had become a fringe party following the parliamentary elections of 1990.

The new Constitution of 2015, the transition to republic, the emplacement of federalism and secularism are seen as successes ushered in by the Maoists, but the credit is largely misplaced. Had parliamentary democracy been allowed to function in the 1990s, the country would have been far ahead than now on the road to social justice, human rights, economic growth and equity. Instead of the mere words in the new Constitution which we have to convert into practice, Nepali society would already have been today more than a playing field for Dahal and his coterie.

The Dahal-Bhattarai duo knew that in a country of few highways and scattered settlements, where government presence was thin, selected public killings would be sufficient to cow down the populace.

Meanwhile, they took the short-cut to power by foisting Maoist ideology on gullible youth desperate for change, pushed child-soldiers into the fray, and allowed opportunists to take advantage of the innocents all over – and blackmail society to land feet first in open politics on the promise of peace.

The Maoists took full advantage of the fact that the royal palace of King Birendra did not allow the elected government to deploy the Nepal Army for six years, leaving the job to an incapable civilian police force.

Dahal-Bhattarai decided to end their “war” when it became clear by 2006 that they would be wiped out by state security. As they came above ground with the 12-Point Agreement and Comprehensive Peace Accord, they played the national players and international community to advantage. The atrocities of the conflict were relegated to a “transitional justice process” that Dahal has waylaid and sabotaged to this day, even as the Maoists made themselves comfortable in mainstream politics.

Pushpa Kamal Dahal knows well that, whatever his success in politics, he needs to have a credible-looking transitional justice process for longer term goals. And that has been his concentration, to filibuster and delay the process thus far.

Now, with the help of Minister Bandi, Dahal has decided to use the majority he commands in Parliament resulting from his coalition with Prime Minister Deuba’s Nepali Congress to ram through the compromised transitional justice amendment bill.

By presenting a problematic bill to Parliament through the Cabinet, Deuba and his other coalition partner former Prime Minister Madhav Kumar Nepal are creating conditions for Dahal to achieve full “legitimacy” by claiming a successful transitional justice process before the world.

The passage of an uncorrected Transitional Justice bill would allow state-side and rebel perpetrators of the conflict era – the abductors, rapists, murderers, abductors and torture-masters – to go scot free. It would provide a red carpet for Dahal’s long term politics and make him acceptable to the world at large without having to show remorse nor accountability.

Dahal believes that the lack of institutional memory in the international community will make it easy for him to claim international legitimacy, which will boost his political credibility within the country.

Muktinath and Baburam

The ruthlessness of Pushpa Kamal Dahal found company in his Maoist co-leader Baburam Bhattarai, as seen in the latter’s reaction to the killing of the teacher Muktinath Adhikari of Duradanda, Lamjung. Bhattarai had attended an exhibition titled “A People War” and a photographer captured him studying the image of the murdered teacher, whose body had been strapped by the murderous Maoist cadre to an uttis tree.

This is what Bhattarai wrote in the exhibition visitors’ book:

“The character of violence is class-based and historical, one cannot understand violence a-historically and outside of class definitions. It would have been more useful if these photographs had been presented in a class-based and historically contextualised manner.”

Baburam Bhattarai, CPN (Maoist), 2064-11-13

In the attitude of Dahal and Bhattarai, through the maze of obfuscations and word-play, one finds justification for murder, a right to take someone else’s life. Over 16 years, the Maoist leadership entered the mainstream of Nepali politics, mastered the play of power and money, and beat others in the game. Dahal’s opportunism and absence of principles and ideology has helped drive down the value of politics in the country.

The most notable success of Maoist leaders during the peace process and constitution-writing was to build relationships with the topmost leaders of the Nepali Congress and Communist Party of Nepal (United-Marxist Leninist).

This helped them in their primary goal of sabotaging transitional justice and to develop unprincipled coalitions with any and all to harden their grip on power – which simultaneously assured control of bureaucracy, access to big money, and ability to manipulate elections. Dahal’s opportunism helped the Maoists run roughshod over other parties, which were held back by some modicum of principle and historicity.

The other factor that allowed Dahal and his cohort to succeed in open politics even while cheating on the conflict victims and society at large was the sheer passage of time. The international community, which was made malleable towards the Maoists vis-à-vis the democratic parties during the years of the Ian Martin-led United Nations Mission to Nepal, would much rather move on rather than chaperone a process that had lost international glamour.

Meanwhile, citizens who came into adulthood after 2006 have faint memories or no recall at all of the conflict years. There is no lived memory of even the terms of the conflict – “3-nought-3” rifles, “socket bombs” or “safaya” – nor experience of the villagers’ terror of being caught between the Army and Maoists.

Certainly, the compromised social scientists and opinion-makers of Kathmandu, coddled by years of donor-funded living, are not going to inform this young cohort that it was the Maoists who triggered the process leading to today’s economic decline, societal chaos and botched politics – and that Dahal with his agenda of “kram-bhangata” continues to be the key precipitator of due process destruction.

Army and Maoist

Over the course of its history, while Nepal suffered under structural societal violence, heart-stopping physical violence and blood-letting had mostly been restricted to the Kathmandu court or the battlefield. The Maoists’ strategy and tactics were informed by the use of violence on civilian stalwarts, and when the Army entered the fray in November 2001, its higher firepower exacted exponentially more casualties.

The Maoists used more cruelty in individual killings, while the security forces killed more with their weaponry – the public was caught in the crossfire, unprotected physically and metaphorically.

The conflict ended through the 12-Point Agreement negotiated in New Delhi, which led to the Comprehensive Peace Accord of November 2006, and one is thankful for the end of the murderous conflict. However, there can be no end to the peace process without a proper, principled end to the transitional justice process, in the absence of which the prospect of copy-cat insurgencies and reactionary state terror will always remain a near possibility in Nepal.

The need for accountability of perpetrators is the same whether done by the state of the rebels, but there is a significant difference when it comes to political agency. While the state-side perpetrators – in the Army, Nepal Police and the Armed Police Force – have retired and are not in any position to direct the polity, the Maoists are today in a defining position in mainstream politics.

The leadership cohort including Pushpa Kamal Dahal and Baburam Bhattarai will remain Maoist in letter and spirit until: a) they indicate sincere remorse and recrimination for launching the “people’s war” including the justifications they provided for extra-judicial killings; b) they allow the transitional justice process to a just and credible conclusion, without let and hindrance.

While the guns have fallen silent in Nepal, peacetime requires a proper termination to transitional justice. Society will not have put the conflict behind, and will not be able to look forward to building its economy, stabilising its society and protecting its varied culture amidst global dissonance, until it gets stable democratic politics. It will not achieve democratic stability in the absence of valid transitional justice, to put the ten years of conflict and ten years of ruinous transition behind.

As for the Maoist leaders, they should not delude themselves into thinking that they can fool the people by changing the name or their party, or espousing convenient-sounding ideologies and philosophies. Kathmandu’s intelligentsia should be alert to the fact that while Pushpa Kamal Dahal’s attempt at “state capture” (rajya kabja) through armed insurgency was to fail, he will be in a position to do that by engineering a faux transitional justice process, through the legitimacy he expects to gain from that.

It is important to distinguish between the Dahal cronies who are riding the bandwagon with him and enjoying the fruits of power and position, and the mass of Maoist cadre, who joined believing in the fight, and who today can also be termed victims of conflict. Together with the families of the dead, disappeared, as well as the maimed, the child soldiers, and those mentally traumatised, those who lost livelihoods and property, the Maoist cadre too form a mass of cumulative distress, having had their lives and futures stolen.

What’s the hurry?

Minister Govinda Sharma Bandi likes to repeat, as do so many others, that too much time and effort has been wasted on transitional justice, and the process needs to be brought to an end as soon as possible. But what he has tried to do in response is end it by short-circuit.

To try to rush through transitional justice just because it has taken so long, is to deliberately misinterpret “long” in the interest of some power players. And these are not the conflict victims. The hurry is on the part of Dahal and company, to some in the army who want the matter done with and shelved away, and for some internationals who have “TJ fatigue”.

The tens of thousands who make up the conflicts victims of state and Maoists do not have a wish to defend a flawed amendment bill in order to create a bogus transitional justice process. For sure, the victims want the government to hurry with reparation and compensation, and to provide support for livelihoods, children’s education, and move to return of appropriated property.

But they do not want a single short-cut in the delivery of justice for heinous crime for which international practice demands accountability, viz. rape, abduction, disappearance, torture and extra-judicial killing.

Having forced the polity to dilly-dally on transitional justice all these years, supremo Dahal has decided he is now in a comfortable enough position of power, and that the Nepali Congress and Communist Party of Nepal (United Marxist-Leninis) are compromised enough, to push through a transition justice bill of his liking – accountability with reduced-sentencing to less than a handful and immunity for everyone else. His reading is also that the international community, particularly the Europeans who have pushed the transitional justice process, want now to get it over with.

Dahal needs to get international support of the process because his national political advance requires him to be able to travel overseas, beyond India and China which have always been welcoming. Thus far, his political journey has been restricted by the Nepali public’s knowledge that he could be nabbed through universal jurisdiction during travels to select Western countries.

In June 2016, Dahal did not board a flight to Australia at the last moment when he was informed diplomatically by the Australian foreign service that a Maoist victim had moved the courts to accost him upon arrival.

Dahal was given special compassionate consideration by the US government to visit the country in March 2019 for the medical examination of spouse Sita Dahal. So desperate is the former prime minister for the perception of international legitimacy that he is currently on an extended visit to Japan not on official invitation, but at the behest of Maoist supporters resident in Japan.

Nationals and internationals

Dahal does not have any problem from either China or India, which is why he can visit those countries. The Chinese will not be heard uttering “transitional justice” while the Indian authorities never liked the fact that Nepal had an energetic transitional justice process underway, mainly because an example from nearby Nepal may build pressures for the practice to be applied for its long-running conflicts in the North East, Kashmir, and in relation to the Naxal insurgency.

Dahal has shared with associates his understanding that the Americans have been placated by his smart, tactical reversal on the Millennium Challenge Corporation grant which he got his radical cohort to oppose, and that the US government would not now have objections to the bill before Parliament.

The Europeans were at the forefront together with the United Nations to get Nepal started on transitional justice, but have been pre-occupied with issues ranging from Syrian refugees to climate crisis, the collapse of NATO intervention in Afghanistan, and now the Ukraine invasion.

The UN Office of the High Commissioner for Human Rights was the lead agency for the international community during the conflict before eclipsed by UNMIN, and it had put together a detailed dossier titled “Nepal Conflict Report” listing and detailing the main atrocities of the decade-long conflict.

And yet, OHCHR is silent on the Transitional Justice bill, as are the various human rights rapporteurs. To give due credit, Human Rights Watch, Amnesty International and International Commission of Jurists continue to keep watch and bring out statements on the transitional justice process of Nepal, but the fervour is waning.

Victims all alone

In the end, watchdogging a proper denouement to the peace process through a principled transitional justice practice is the task of Nepal’s civil rights organisations and the victims of conflict themselves.

The human rights community of Nepal has lately been divided due to personal ambition, careerism, political party bias, ideology (or lack thereof) and drying up of funds. The community is also dispirited by the inability to generate media interest nationally and internationally on transitional justice issues, and human rights generally.

The distinctiveness of the Nepali experience has been the uniting of the victims of conflict, both those hurt by Maoists and the state, and the Conflict Victims’ Common Platform has been unique in the world history of post-conflict organising.

Yet, the victims, who live in the far corners and are largely in economic distress and lacking political connections, have been reduced to watching in horror as the process is hijacked. Nepal’s victims of conflict are thus alone before the world, and yet continue to protect the flickering flame of transitional justice.

The Nepali process is also overlooked in the context of great recent conflagrations around the world which have had weak or non-existence transitional justice exercises, from genocides and pogroms to mass killings, within Asia from Cambodia to Sri Lanka, Burma and Afghanistan.

This attempt at comparison is unfortunate when it is made, for Nepal’s experience with the horror of war is its own and need not be compared with other situations, and the pain of our victims needs to be addressed for their own personal needs as well as for the lasting impact that the conflict has had on individuals and society.

The international community needs to understand that when you speak of human rights in Nepal, ipso facto you have to refer to transitional justice. And Nepal holds a candle for transitional justice for all of South Asia as well as the world, which is why we cannot come so close to a logical, humane conclusion after a decade and half of trying – only to be sabotaged by a minister in cahoots with the prime minister, both of them acting at the behest of the Maoist chieftain.

Loss of political capital

Pushpa Kamal Dahal keeps making dire warnings to their cadre that conspiracies are being hatched to take them all to the International Court of Justice in The Hague. But Nepal is not a signatory to the Rome Convention, which is mandatory for any citizen to be tried at the International Court of Justice. The only possibility for an overseas trial is through countries accepting the principle of universal jurisdiction and responding in a national court, say, when an accused Maoist leader or Army officer is visiting.

Why then does Dahal keep repeating “They want to take us to the Hague”? It is his device to keep the cadre united. Dahal himself conceded to this writer four years ago that there was no possibility of being taken to The Hague.

What Maoist leaders do fear deeply, however, is the possibility that the transitional justice process will put a brake on their successful political careers – as prime ministers, ministers and in all kinds of state positions that allow them to exercise power and amass wealth.

Thus, it is not even the fear of going to jail in Nepal that has them wanting to impair the transitional justice process, rather the fact that even to be called to a hearing by the Truth and Reconciliation Commission and answer questions in relation to complaints by victims will impact their political standing and careers.

This is why Minister Bandi was constrained to draft an amendment bill that seeks to wipe away accountability for conflict era crimes against humanity and war crimes, even the need to appear before commission hearings. The need to impress the international community of an “inclusive process” was well understood by Minister Bandi, who came to his new appointment (without being a member of Parliament) from a career in human rights.

In fact, for the last decade-and-half, Govinda Sharma Bandi has been the pre-eminent human rights lawyer explaining the intricacies of the unique and alien transitional justice procedures to Nepal’s lawmakers and victims alike.

Minister Bandi held a series of consultations in all seven provinces, except that they were selective and tended to screen out those who may ask uncomfortable questions, such as an active group of wives of security personnel who were killed during the conflict.

He also held meetings with Kathmandu’s civil society and went house-to-house when he felt personal show of deference was advisable. But the end result proves that the high profile consultations were a sham exercise. When the Supreme Court decreed that amendments be drafted in consultation with victims, it certainly did not mean this.

Bandi’s bill

The amendment bill is perpetrator-friendly. It has dared to do something unique on a worldwide scale, distinguishing between run-of-the-mill killing and torture, and killing-torture done heinously.

One supposes Minister Bandi will tell us how exactly to distinguish between a killing done in the normal course, and that done with extreme cruelty and inhumanity – and also the transition point from one to the other. The same for torture.

The bill seeks to bring the judiciary under control of the executive, such as when it brazenly dictates reduction of sentencing. This attempt to weaken the rightful role of the judiciary must be seen in the context of numerous instances when the executive and legislative branch have sought to belittle the judicial wing.

Only six months is allowed to the Attorney General’s Office to prepare the investigation and court papers in the cases of war crimes or crimes against humanity, on cases from two decades ago requiring collection of evidence and witnesses. This would be laughable if it were not so cruel.

The bill provides an opportunity for perpetrators to be forgiven by victims for heinous conflict-era crimes. Such extreme human rights abuse is of concern to the entire society rather than only the victims. The latter have the right to reparation, memorialisation as well as right to due process and accountability. General amnesty is the right of the state to grant and not the victims, and that too a right to be exercised with extreme care.

Given the power grab of the polity by the Maoist leadership over the years, and with Dahal and his associates evolving as a dynamic political force, one can imagine the kind of pressures, threats and enticements that will be brought to bear on the victims when it comes time for them to decide on amnesty as per the bill. For more than two decades, the victims of Nepal’s conflict have lived with terror, loss, neglect, isolation, anxiety and frustration, and continuously suffered the absence of justice.

And now “a human rights lawyer” become Law Minister has created conditions for victims to suffer pressure from their very perpetrators. One can imagine the kind of money and muscle that will be used on the victims in towns and villages. There is also little doubt that the security forces will use everything at their command, including the use of government machinery, to “persuade” the victim community.

Bandi’s bill has narrowed the possibilities of criminal accountability for perpetrators. The attempt is there to keep an excess such as extra-judicial killing outside the purview of accountability and the courts, something that will have lasting impact on the stability of state and society.

For all else that is going wrong in statecraft in Nepal, this type of formalised impunity will ultimately hurt society, culture and economy, and also have a bearing on Nepal’s geopolitical status and international stature. A society that does not have the death penalty and is striving to make transitional justice work is actually being made to pay for its high ideals.

Nepal standing alone

Nepal is the only country in South Asia where transitional justice is being exercised at all, and one of the few societies worldwide doing so. Just as capital punishment does not exist in Nepal, the idea of transitional justice is being implemented only here in the Subcontinent. Sri Lanka used to have a transitional justice process, but that disappeared with the escalation and end of the conflict in May 2009 and takeover by the Rajapaksa clan.

India’s society could use transitional justice for long-term peaceful society given its many long-standing internal conflicts, and so could Pakistan. However, you do not hear the term being used in either country, to be applied either against the security forces or rebel groups.

Transitional justice seeks to stabilise a post-conflict society and prepare it for long-term peace through the three-pronged process of reparations, memorialisation and accountability for extreme human rights abuse (which would be war crimes and violation of international humanitarian law).

The most sensitive aspect is accountability, where even under the umbrella of seeking truth and promoting reconciliation there is need for justice to be delivered on human rights excesses. This is also what the Supreme Court directed and what international best practice requires.

Nor can anyone point to the application of any defined norm for transitional justice application, such as pointing to South Africa or Colombia, for each country’s antecedents and experiences are unique.

While in the case of South Africa, the rebels there were fighting a racist Apartheid regime, in Nepal the Maoists took up harms against a Nepali state that, for all its inherent structural injustices, was on the path of parliamentary democracy. There can be no charges to be brought against accused individuals against whom evidence cannot be gathered, but each person charged with evidence of excesses committed must be tried in an unfettered court.

Nepal stands at the crossroads, where it can either do itself proud by rejecting or correcting the transitional justice amendment bill brought with extreme prejudice, or allow unrepentant former rebels accused of excess to run free and lay out the red carpet for their further infiltration into the polity.

Till today, society has been protected somewhat from the dangerous results of unchecked impunity, but failure to stop the bill as it stands will provide an open field for Dahal’s boot to fall where it may. It is certain that Prime Minister Deuba and his coalition partner Madhav Kumar Nepal will not be there to stop Dahal.

The amendment bill is designed to drag Nepal down to the level of the South Asian countries that do not have transitional justice, whereas ours is a society that has been trying to lift itself to a high level of governance and values that include federalism, inclusion, local governance, human rights and transitional justice.

If the politicians and members of Parliament do not understand the urgency, it is up to the lawyers, intellectuals, journalists and civil rights activists to come to the forefront and stand with the victims of conflict.

Kanak Mani Dixit is a writer, journalist and publisher, as well as founding editor of Himal Southasian magazine.

This article is an edited version of one that first appeared in the Nepali Times.