Nepal’s Transitional Justice and the West’s recalibration

Transitional Justice was a term that was plied by Western governments and international human rights organisations on Nepal, and it was a good thing. After experimentation in South Africa, Colombia, Cambodia, Uganda and elsewhere, it was thought that for Nepal to heal the wounds of the internal conflict, a ‘truth and reconciliation’ process was required.

Nepal’s state and society embraced transitional justice as the country came out of the conflict in 2006, translated it as संक्रमणकालीन न्याय, and made it their own after a few years of internalising the concept. It was understood that for the country not to be entrapped in another war of the kind started by the Maoists and responded to with equal brutality by the state, society needed memorialisation, reparation, reconciliation, while promoting accountability for crimes that amounted to atrocities.

While internalising संक्रमणकालीन न्याय, Nepali society added depth to the concept through judicial review and public activism. Victims of conflict of both sides came together to demand memorialisation and reparation, as well as accountability for the most heinous crimes of rape, abduction, torture, disappearance and extra-judicial killing. Human rights defenders also sought to overcome inertia among the political parties to ensure that the two commissions (on truth and reconciliation, disappearances) got working diligently.

Transitional justice (TJ) would be a domestic project, but supported and scaffolded by outside actors. It was clear from the start that the International Criminal Court in The Hague would not be able to look at heinous crimes committed by the security forces and rebels, because Nepal is not signatory to the ‘Rome Statute’ of the International Criminal Court.

So, beyond the TJ formula internally, Nepal’s rights defenders developed hope in the concept of ‘universal jurisdiction’, where countries which have enacted the relevant legislation can arrest accused perpetrators in their own territories. This was the reason Pushpa Kamal Dahal scuttled his planned trip to Sydney at the last minute in June 2016 after being alerted by the Australian Embassy of a criminal complaint that had been filed down under.

Sabotage and subterfuge

Sadly, the TJ story has evolved as one of sabotage. The perpetrators in the security forces have not been effective opponents of the process following the shakeup of the People’s Movement of 2006 and Nepal’s transformation into a republic, so the key saboteurs have been the Maoist bosses Pushpa Kamal Dahal (present prime minister) and Baburam Bhattarai. While it is Dahal who is most in the news, former Prime Minister Bhattarai was the principal ideologue of the ‘people’s war’ and headed the ‘people’s government’, which conducted the gravest abuse and killings on the part of insurgents.

As individuals who instigated youngsters to pick up arms against parliamentary democracy in 1996 (not a royal autocracy as the misinformed believe), the Maoist leaders made a quick gearshift and abandoned their ‘war’ a decade later, when they were at the cusp of defeat. They signed the Comprehensive Peace Accord (CPA), which specified the ‘management of arms and armies’ as well as a TJ process.

The CPA included a commitment to transitional justice, which has been pending all these years due to prevarication by the Maoist leadership and lack of diligence on the part of the other political forces. Thus it is that the peace process is as yet incomplete, with TJ in suspended animation as the TRC and disappearances commissions get established and farcically (as directed) do nothing. Dahal and Bhattarai, mainly, have not had the courage to jeopardise their place as top dogs of Nepali politics by ensuring that their commanders and cadre accused of atrocities were tried, in a process where accused perpetrators from the army and police would also be prosecuted.

The difference between the two streams of perpetrators is that the Maoists are today on top of the political heap, destabilising Nepal’s democracy and its future, while the army and police personnel are mostly retired without real agency.

To this day, the Maoist supremo duo desperately want everyone to accept the ‘forgive and forget’ formula, even though they have not shown any contrition themselves. Meanwhile, outright forgetting would defeat the very philosophy and purpose of transitional justice. The TJ procedure has also been choked because of the top-level camaraderie that developed between the Maoist leaders and those of the CPN (UML) and Nepali Congress (NC) during the negotiations for peace. That fellow feeling grew during the decade of ‘transition’, which included negotiations for the 2015 Constitution over the two constituent assemblies over eight years.

The momentum on TJ was further affected by the numerous coalition governments of the past decade which have included different permutations and combinations, but always with the Maoist party included even as its parliamentary presence has shrunk consistently since the first elections of 2008. Youthful entrants into the political arena during last year’s elections, including the Rashtriya Swatantra Party of Rabi Lamichhane, have thus far shown no appetite for understanding and implementing transitional justice as a means of ensuring a secure and democratic future.

Questioning the Occident

There is not much to be expected of New Delhi when it comes to the TJ agenda, which the Indian authorities can and will use only as a tool for their own presumed diplomatic ends. And there is not even the expectation that the Beijing will speak up on human rights in Nepal or elsewhere. Clearly, these state establishments are cognizant that promoting transitional justice will come to haunt them for their own escapades.

Western societies have enough skeletons in their closets, from domestic mass-killings to atrocities extending from Vietnam to Iraq to Afghanistan, but they deserve due credit for promoting TJ in post-conflict societies. Which is why it is incongruous for them to back away from watchdogging the process in Nepal, one of the few countries where a proper process has a chance of success due to the steadfastness of the community of conflict victims. Within South Asia, this is the only country where TJ has a fighting chance, after the process evaporated in Sri Lanka with the political rise of the Rajapaksa clan.

As the Western states and human rights entities directly and indirectly linked to them cosy up to the Maoists with an eye to geopolitical convenience, this abandonment of Nepal’s victims and polity must be challenged. Questions must be answered: Why would the American and European governments and West-based human rights organisations/networks forget the use of child soldiers by the Maoists, which is a war crime? The issue was firmly raised internationally when Special Rapporteur Radhika Coomaraswamy produced a former child soldier, a young woman from Chitwan, at the UN Security Council chamber for the Council’s 6341^st meeting on 17 June 2010.

Why would the Western powers and the United Nations system ignore the detailed dossier titled the Nepal Conflict Report, published by UN-OHCHR in October 2012 that contains details of war crimes and crimes against humanity conducted by both government forces and the Maoists? It is nothing less than silly, to get out an important document and then act as if you know nothing about it. Acts of omission seem to be defining the Western neglect of Nepal’s victims of conflict, and the transitional justice process they so desperately want concluded. Instead, the West seems to want the problem to simply go away, seeking exasperating interpretations to accept governmental efforts which clearly cannot be defended.

Western embassies and entities in Kathmandu did not seem overly perturbed by the amendment bill introduced last year by then law minister Govinda Sharma Koirala (‘Bandi’), who is Dahal’s anointed oarsman to get him across the TJ shoals. The document Bandi presented before Parliament was clearly designed to give a clean chit to the Maoists and state-side perpetrators of conflict era atrocities, for example by distinguishing between ‘murder’ and ‘extreme murder’ so as to get all perpetrators off the hook through a sham process.

Likewise, there are dualities created in the cases of rape and torture, so that those who are not categorised as having engaged in extremis are to be let off the hook. It is as transparent as that, but do we get public reactions of behind-the-scene lobbying by the embassies and international human rights organisations? No.

Bizarre bill

Even as this article was being prepared, the current Dahal Government has decided to fast-track the bill as designed by Bandi, using the brute majority it commands with NC support to ram the legislation through Parliament. Thereafter, the plan is to tell the Western world that TJ in Nepal has been taken to its ‘logical conclusion’. As things stand, a cynical West seems willing to go along with the false narrative – even though this revised bill maintains all the elements required to get conflict-era perpetrators off the hook, while displaying some pretentious adjustments to prove flexibility.

What is it that has changed vis-à-vis Nepal that the Western embassies with their posse of political and human rights advisers look the other way as domestic players make a hash of TJ through outright sabotage of prevarication? If it is lack of institutional memory, then it is shocking that, say, the US Embassy with its specialty advisors can forget so quickly a matter with which Nepal’s polity is now fully engaged with.

It is no longer possible to disassociate the discussion on civil and political rights in Nepal from the campaign for transitional justice. ‘Human rights’ in Nepal today includes TJ, and the two will not be separated until a proper denouement of the latter through application of the high principles that the Western interlocutors used to talk so expansively about, which Nepal’s victims of conflict are now bent on implementing with the help of dedicated rights defenders. The victims of conflict have come to realise that they are quite alone, and must stay together and continue the fight for a proper TJ process – something they put down on paper presented to the United Nations Resident Coordinator on 22 August 2022 when Bandi’s came out with the first rendition of his bizarre bill.

TJ is now a living and continuous reality of Nepali society, and even as some human rights defenders have waffled after reading the signal from the Western ‘donors’, the victims who are not under the direct sway of the Maoist commissars have by and large stayed firm. Indeed, the uniqueness of the TJ process of Nepal has been that the victims of both state and rebels came together, in particular under the aegis of the Conflict Victims’ Common Platform, which produced a landmark transitional justice ‘charter’ with roadmap to conclude the process with justice and practicality.

Even as the Maoist leadership has tried its utmost to divide the victim community, including use of celebrating 23 February 2023 as ‘People’s War Day’ as a national holiday, there are enough victims of both sides that remain united. But theirs will be an increasingly tough fight, given the political consolidation of Dahal as reflected in his latest collaboration with Sher Bahadur Deuba, and the foisting of the जनयुध्द दिवस on the country as a whole by a party that has such a slim representation in Parliament.

Supreme Court decision

The fact that Maoists have no regrets about ten years of horrific violence and do not care for TJ was starkly visible in the aftermath of the Supreme Court decision of 4 March. All that the division bench of Ishwar Prasad Khatiwada and Hari Phuyal did was to order the court administration to admit the case placed by Gyanendra Aran and more than a dozen others to hold Pushpa Kamal Dahal accountable for a speech where he said he would take responsibility for 5,000 of the 17,000 who were killed during the decade of conflict.

The moment the Supreme Court order was handed down, erstwhile Maoist factions went berserk, challenging the court in unison and threatening the conflict victims who had dared to go to court. The directive was all that took for nine Maoists sub-groups to come together and, in the presence of the sitting prime minister, threaten further bloodshed and mayhem. These included Netra Bikram Chand, who suggested that the ‘instigators’ of the court case should/would have been killed during the conflict years. PM Dahal and all the others chimed in, blaming the court decision on ‘imperialist conspiracies’, ‘Western design’ and ‘revisionist agenda’, even though well aware that the West is back-pedalling on Nepal’s TJ process – their main goal was to agitate the cadre as a means of uniting them.

Because Dahal had command responsibility in the Maoist party, and because his various public statements have conceded his directives for extra-judicial killings, including the ‘elimination without torture’ directive he told the BBC Nepali Service he had given six months after the start of the ‘people’s war’, in the eyes of the Nepali public there is every reason to delve judicially into the matter of his culpability.

Given that the TJ process has been kept hostage for more than a dozen years, it was fully within reason that the courts be the place of last resort, and the Division Bench itself stated, citing Supreme Court decisions as precedence, that the victims of conflict must get recourse through the courts.

Faux TJ in a petri dish

The ‘original sin’ of many Western diplomats, ‘peace consultants’ and activists has been to believe that Maoist insurrection was justified because of the extreme structural and historical injustices in Nepali society, ruled by an exclusionist Kathmandu-centric society over the centuries.

But the reality, besides the problematic past of every society in the globe, was that the Maoist raised arms in 1996 against an incipient parliamentary democracy barely five years in the making, and that too after the Maoists leaders had come to realise that they would forever remain a tiny party if they went through the ballot.

The Western powers and the non-profit human rights organisations based in the West were the ones who promoted, supported and funded TJ in Nepal. India, as the power that looms over Nepal’s day-to-day politics, mostly stayed away from TJ, except once when it used it as a threat against Pushpa Kamal Dahal at the UN Human Rights Council in Geneva in 2015 during the procedure known as ‘universal periodic review’. For the first time, India demanded the effective functioning of the TRC and asked for “prosecution of those responsible for violent insurgency”.

It is speculated that, going ahead, New Delhi’s apparatchiks will use the ‘sword of Damocles’ of TJ against Dahal as and when required for its own purposes, as it is thought to have done in the latest round of interventionism since the elections of 2022, in the building and dismantling of coalitions.

Meanwhile, the Western re-calibration on Nepal, after backing and supporting the TJ process to the hilt, seems explained by two factors. Firstly, a diversion of funds from INGOs worldwide due initially to the Syrian refugee crisis and now the Ukraine war. ‘TJ fatigue’ among European embassies has been another factor, and added the individual ambassadors who are in a rush to have TJ dusted and delivered during their respective assignments, as if Nepal were a petri dish for experimentation.

Much more importantly, it is the spectacular economic and geo-strategic rise of China as a world power that has the West, led by the United States, reassessing their engagement in numerous fronts. The priority is now to counter China, and local realities and sensitivities be damned.

When it comes to Nepal, the Americans seem to have decided to live with Dahal regardless of their earlier distaste, much as they have with Narendra Modi of India who earlier could not even get an American visa due to links to the Gujarat riots when he was chief minister of the state. The US allowed Dahal to visit the US on an exceptional basis on March 2019 for the treatment of his ailing spouse, but it is clear that hurdles will be lifted in future. Prime Minister Dahal has been invited to participate in the second ‘Summit for Democracy’ to be hosted by President Joe Biden in 29-30 March, even though it is expected to be a virtual conclave.

Fearful of ‘losing Nepal’ to Beijing, and given that New Delhi has facilitated Dahal’s remaining top dog in the latest instalment of Nepali politics, Washington DC has decided to back-pedal on TJ. On the agenda set by the US, the EU, other European diplomats, grand votaries of transitional justice before this, have swallowed their pride and seem willing to see a compromised faux TJ process.

Given the power of the United States in the far corners of the world, in the past it has been possible for alternative or recalcitrant voices to be heard in the US House of Representatives or Senate, through interested aides. Sadly, those days seems to be over, as the US gets preoccupied with existential domestic polarisations and countenancing the overarching fallout of the Ukraine war. Who, under the circumstances, will want to listen to the subtleties of the transitional justice process in Nepal, especially when seen against the backdrop of the so-called ‘Chinese menace’.

Guidepost to the world

In the past, American and other Western assistance provided to Nepal was relatively benign, much of it supporting Nepal’s entry into the world sphere after the Rana era, to build physical infrastructure, fund education and public health, support social justice and inclusion. Some of that orientation still remains, but most of it has evaporated in the last few years. And, while fully open to Chinese overtures, Dahal and cohort are open to exploit American apprehensions.

Even while preoccupied with the Russian invasion of Ukraine, for the long term, the West is anxious about the upset in the worldwide power balance resulting from China’s progression, even as India is unable to provide a ‘southern counterbalance’, without a similar trajectory in economic growth and military prowess. The worry is heightened when it comes to Beijing’s rising influence among neighbouring powers, and in the case of Nepal, China having ratcheted up its involvement after decades of benign indulgence.

Under the circumstances, led by the Americans, the West has begun to look at Nepal through the global geopolitical lens, even though the head of USAID Samantha Power during her visit to Kathmandu, said otherwise. Responding to a query by this writer during a ‘town hall meeting’ in Patan on 8 February, she insisted that the US development assistance to Nepal was guided by the altruistic intention of helping the Nepali people rather than geopolitical calculations. Some of that may still be true, but the momentum in US assistance is rapidly becoming geopolitical.

It is this turnaround in Western outlook, led by the United States, that has upset the TJ cart in Nepal, and emboldened perpetrators in the Maoists ranks, many of them in active politics, and given heart to those in state security. The EU, Switzerland, Norway and the United Kingdom were big supporters of TJ in Nepal, but they have gone lukewarm.

Meanwhile, West-based human rights organisations such as Amnesty International and Human Rights Watch that were such enthusiastic TJ supporters are today more pro forma than proactive. And what of the UN Office of the Human Rights Commissioner, for whom Nepal’s transitional justice process does not seem to exist, forgetting that just because Nepal does not make ‘the news’ does not mean that issues of conflict have ended and the victims of extreme abuse are mollified.

Truth be told, Nepal has taken TJ further than most post-conflict societies. When it is said as if by rote that transitional justice should be completed “according to international principles and Supreme Court directives”, we overlook the fact that the Supreme Court of Nepal has adopted and adapted the principles on TJ through several decisions in a way that it adds to the global movement on transitional justice. Nepal’s judicial interpretations on the subject can be used to prop up the agenda internationally. In this sense, even more than the ‘enlightened’ international community teaching Nepal, the various national players from the justices to conflict victims could be providing guideposts to the world.

There may be ‘transitional justice fatigue’ on the part of some Western actors, the human rights INGOs, the ‘donors’, ‘funders’ and even those Nepali ‘stakeholders’ who go where the money flows, but संक्रमणकालीन न्याय is now a homegrown process and it will proceed with or without the West. It will be led by the victims, which includes the kin of those murdered and disappeared by the state or Maoists, and those who have been maimed, tortured, raped or used as child combatants. There is evidence based on activism that these voices will not be silenced.

Idealism and cynicism are the contradictory notions that have thus marked the international community’s involvement and engagement with transitional justice. Presently, the Western powers who brought us this far seem to be feverishly going backwards. But Nepali society will proceed on its own pace for its own purposes, and the Supreme Court decision to allow a case to be brought on a claim regarding conflict era killings against Dahal as sitting prime minister is proof that whether the outside powers recognise it or not, Nepal marches to its own drummer.

Nepal can be an exemplar for TJ processes everywhere. Just the way we have been taught to study TJ in relation to South Africa, Colombia and elsewhere, Nepal may yet show the way forward for societies coming out of violent conflict. For this to happen, the TJ process here must proceed through the effort and good judgement of Nepali players.