Remembering not to forget war crimes

The Supreme Court order last week to press criminal investigation against former House Speaker Agni Sapkota for his alleged involvement in abduction and murder of Arjun Bahadur Lama in 2005 has opened the door to investigate other war crimes.

Lama was 45 years old in 2005 and a UML member when he was abducted by Maoists. His body was exhumed two months later. A National Human Rights Commission report implicated Maoist leaders including Sapkota who commanded the guerrilla unit in Kavre.

Lama’s wife, Purnimaya, filed a complaint at the Kavre District Police Office in 2007, but police refused to register it, stating that it should be forwarded to the Truth and Reconciliation Commission (TRC). She then filed a writ at the Supreme Court, which in 2008 ordered the police to register the complaint.

The case was under police investigation and an arrest warrant issued, only for the Cabinet led in 2012 by Maoist Prime Minister Baburam Bhattarai to shelve the complaint and the Supreme Court’s order. But last week’s ruling led by Chief Justice Prakash Man Singh Raut overturned that decision, allowing  the investigation to proceed.

In all this time, Sapkota has served as Minister of Information and Communication in 2011 and Minister of Forest and Soil Conservation in 2015. Despite being accused of murder, Sapkota was nominated as Speaker of the House of Representatives in 2020.

"My husband never brought harm upon anyone, why did they committed such a heinous crime against him?" said Purnimaya Lama at an event this week. "I will wait my entire life for his murderer to be punished to the full extent of the law."

The Comprehensive Peace Accord between the Maoists and the government in 2006, envisaged the formation of a TRC and a Commission of Investigation of Enforced Disappeared Persons (CIEDP). When finally set up in 2015, both commissions were headed by political appointees, and there were no investigations or prosecutions.

Last month, after prolonged discussions, the three main political parties selected former high court judge Mahesh Thapa as the TRC chair and former chief secretary Lila Devi Gadtaula to head the CIEDP.

The two appointments and  membership have been criticised by survivors and their families. They said there was no consultation, and the selection was arbitrary, untrustworthy, and disrespectful.

“Transparency was lacking during the appointment of the officials at the commissions and the officials appointed are not competent in transitional justice issues,” says Suman Adhikari, Founder Chairperson of Conflict Victims Common Platform.

The CPA marked the beginning of Nepal’s transitional justice process and formally brought an end to decades long Maoist insurgency. TRC and CIEDP were set up to ensure justice for the victims of the conflict. But the two commissions were formed nine years after the ceasefire because the two former enemies had by then become the state and did not want war crimes to be raked up.

The 2015 earthquake became the pretext for delaying the appointment of the first group of commissioners, and Covid pandemic became the second. The inability of the three main political parties to agree on appointments meant the commissions stayed vacant for years. Both the commissions have also had their mandates extended since 2017.

There are over 60,000 complaints registered at both commissions, of which 63,000 wartime excesses were at the TRC and 3,300 cases of disappearances at the CIEDP. But not a single case was investigated, and the perpetrators brought to justice.

International human rights agencies have repeatedly called for amendments in the acts of the commissions, which have been endorsed but lack implementation. 

Says Ram Bhandari of the National Network of the Victims of Serious Human Rights Violations: “The implementation of the acts is in limbo. A major concern is that political leaders have tried to take the process ahead single-handedly.”

Just as the Maoists and the  parties they fought against are now in Parliament and are a part of Nepal’s democratic system, families of victims whose kin were killed by both sides have now also united in their call for justice for war crimes. 

For example, Suman Adhikari’s father Mukti Adhikari, who was a teacher in a village school in Lamjung, was executed by Maoist guerrillas in 2002. Ram Bhandari’s father who was also a teacher was disappeared by the Army in 2001 from Besisahar.

The Supreme Court in 2020 upheld that there cannot be amnesties for serious crimes like torture and enforced disappearances as per international law. Nearly 1,400 people were disappeared by both sides during the 10-year conflict, and 322 cases of war rape and of sexual violence have been registered in both commissions.

“Cases of sexual violence must be registered three months post the issuance of the notice, not from the date of incident,” states Geeta Rasaili of the Conflict Victims National Women Network. “Such cases must be treated with utmost sensitivity, ensuring the victims’ protection of identity. This can be done only by capable and experienced personnel.”

Much like everything else, transitional justice in Nepal is political. Successive governments since 2006 have been made up of former rebels who committed war crimes and Nepali Congress (NC) ministers who were in power during the insurgency, and this has undermined the process.

“The key decision makers in the government from both sides are the same people who were involved in human rights violations during the conflict,” says Ram Bhandari. “The peace process has therefore become perpetrator centric, rather than victim centric.”

Suman Adhikari echoes this view: “Instead of being answerable and responsible towards the victims in the justice process, the leaders have instead been looking to protect their own interests. Our voices and representation have largely been ignored, the leaders have been continuously trying to delay, dilute and deny the process.”

After 2006, the peace process was steered by the United Nations Mission in Nepal (UNMIN) which supervised camps to disarm and demobilise the guerrillas. Initially, there was strong financial support and political pressure from Western countries and rights groups for Nepal’s transitional justice process. 

But with America backsliding on democracy and human rights and Europe increasingly distracted by the Ukraine-Russia war, the West has lost much of its moral high ground. 

This has coincided with the rise of emerging global powers, China and India, in Nepal’s neighbourhood who have never been big on human rights and freedom of expression.

At its current pace, it may take decades to resolve all the 67,000 cases registered in both the commissions — which suits the NC and Maoists fine since time is on their side. However, the lethargy in sanctioning reparations and investigations will further erode public trust, and risk a future resurgence of violence fuelled by vengeance.

Rights activists recommended that rather than compiling and making bulky reports of cases, they should be sent to the attorney general in batches with periodic reports. But there is little political will to even do this. 

Says transitional justice expert Rajendra Senchurey: “The process of investigations, truth-seeking and archiving must be expedited. Reparations also must be fast tracked alongside.”