Justice delayed

• While the TRC is being formed, investigations into conflict-era cases will need to be 

AUG 13 -On June 4, 2004, 18-year old Krishna Adhikari was taken from his home in Phujel, Gorkha by the then Maoist rebels. Later, his dead body was discovered in Chitwan. In the nine long years since then, Krishna’s parents, Nanda Prasad and Ganga Maya, have visited the police, the National Human Rights Commission, human rights activists and lawyers. All to no avail. After exhausting all their resources, in January this year, the couple staged a hunger strike outside of the Prime Minister’s residence in Baluwatar. They were removed time and again by the authorities, sometimes arrested, one time even sent back to Gorkha. But they always returned. Finally, in a move reminiscent of Soviet-era repression, the government confined the Adhikaris to the Nepal Mental Hospital in Lagankhel for around 40 days. They were discharged after doctors found nothing wrong with them. The couple have since restarted their hunger strike in the emergency ward of the Bir Hospital.

Nepal’s 10-year civil conflict saw thousands of cases such as that of Krishna Adhikari. The UN Office of the High Commissioner for Human Rights’ (OHCHR) ‘Nepal Conflict Report 2012’ has documented over 9,000 cases of “serious violations of international human rights law and international humanitarian law”, which include unlawful killings, disappearances, torture, arbitrary arrests and sexual violence. In the foreword to the report, UN High Commissioner Navi Pillay has taken the state to task for not holding human rights violators accountable and remaining apathetic to the suffering of victims and families. While transitional states must take great care to balance the twin pillars of peace and justice, it must not come at the expense of victims and their rights to justice, punitive or otherwise. That said, transitional justice and human rights should not be used as tools to settle old scores. The aim should always be lasting peace and stability through the uncovering of crimes committed during the conflict and reconciliation between victims and perpetrators.

Seven years since the signing of the Comprehensive Peace Accord, little has been done regarding transitional justice, which is a crucial aspect of the peace process. To that end, a proper Truth and Reconciliation Commission (TRC) is instrumental. The political parties must conscientiously address the rightful concerns of human rights organisations and the international community regarding provisions for blanket amnesty in the TRC ordinance approved by the President. Selective amnesty, like in the case of Northern Ireland, can sometimes pave the way for lasting peace but blanket amnesty will only foster resentment and could provide ground for extra-judicial retaliation. A capable, independent TRC, in line with international human rights norms, needs to be swiftly formed. But in the meantime, investigations will need to be initiated into cases such as that of Krishna Adhikari. Transitional justice should complement traditional justice mechanisms, not replace them. Agendas of elections and constitution-making have long overshadowed transitional justice but any longer and the suffering of victims runs the risk of being consigned to the history books.

Posted on: 2013-08-13 08:50 

Elections and perpetrators Just as the United Nations vets soldiers going on peacekeeping missions, persons credibly accused of atrocities must be barred from election candidacies

Elections and perpetrators

• Just as the United Nations vets soldiers going on peacekeeping missions, persons credibly accused of atrocities must be barred from election candidacies

AUG 02 -

So much has gone wrong in the post-2006 period, including the distorted peace process and rampant extra-constitutionalism, that a proper election exercise is necessary to get society back on the rails. The elections for Constituent Assembly-II (CA-II) must happen on November 19 and it must be held to the highest standards.

Elections are not to be conducted as a ritual but rather a means of delivering the people’s un-coerced mandate. Nepal’s electorate cannot be relegated to second-grade status, which is why we must resist the lowest-common-denominator exercise being foisted by the ‘four-party syndicate’ led by UCPN (Maoist) Chair Pushpa Kamal Dahal.

In a post-conflict situation such as ours, elections cannot be ‘free and fair’ without a vetting exercise to weed out accused perpetrators of atrocities.

Low expectations

There are those who react with horror at the term ‘vetting’, saying that the very thought will endanger elections. This is tantamount to abandoning the people to a CA-II dominated by malevolent individuals who have engaged in torture, disappearance, murder, abduction and rape. A proper vetting was neglected during the 2008 CA elections amidst the Maoist momentum and associated propaganda and we should be wiser this time to demand a proper standard.

The last CA had the murder convict Bal Krishna Dhungel walking the corridors, along with several other Maoists accused of excess. But now others are sure to join in the game of pushing thugs as candidates: many Madhesbadi leaders have links with armed outfits, the CPN-UML is in shameless embrace of the ‘dons’, and the Nepali Congress (NC) talks of starting a ‘security force’.

With no expectations left of the four-party syndicate, there was hope that President Ram Baran Yadav, Chief Election Commissioner Neel Kantha Upreti and certain ministers in the present government would stand up for a principled and humane election ordinance. That hope was dashed with the adoption of the appalling ordinance on June 14—without a ‘threshold’ provision to strengthen the House; parties fielding candidates in less than 30 percent of constituencies not required to be ‘inclusive’; and proportional candidatures not to be locked, allowing the party brass to play favourites.

Much worse, however, was the lethal compromise that allows individuals credibly accused of atrocities to be candidates. The election ordinance disallows only those found guilty of a criminal offence in a court of final verdict—meaning that only Dhungel would be barred from contesting.

This provision is a slap on the face of the electorate and gives victims no recourse. As it is, the criminal justice system has been sabotaged by successive governments since 2006, with the revocation of thousands of conflict-era cases in the name of the peace process. During Baburam Bhattarai’s time as prime minister, there was wholesale cancellation of pending investigations. Under the circumstances, with court proceedings deactivated and police files closed, civil liberties groups must seek other ways to block the alleged perpetrators from participating in elections.

UN precedent

Vetting seems to be an alien concept among Kathmandu’s intelligentsia. There are even those who say that it goes against natural justice to bar candidates “just because of accusations, because anyone can point a finger”. However, the international best practice is to debar individuals for high office, election candidatures and peacekeeping duty when there are credible grounds to suspect criminality. Not to forget, we are talking of war crimes and crimes against humanity. The appeal to natural justice must be balanced against the interest of having soiled the CA with the presence of alleged criminals and perpetrators.

Under this understanding, it is appropriate for Nepal Army officers accused of excess to be prosecuted overseas under the rubric of international jurisdiction, as is happening in the UK with Col Kumar Lama. It is also welcome news that some Maoist leaders are keeping clear of certain European countries, for fear of being taken in. If our criminal justice system does not pursue alleged perpetrators, then the international community must.

The United Nations vets soldiers going on peacekeeping duty so that those against whom there is ‘credible accusation’ of excess are debarred. The UN certainly does not wait for a court verdict and it is not asking for much to demand that the same standard be applied to election candidatures for the forthcoming CA. If international peacekeeping forces are to be protected from individuals against whom there is ‘credible accusation’ of atrocities, why should the people of Nepal not be protected similarly in election-time for something as important as a constituent-making exercise?

The national civil society and international diplomatic community should not turn a blind eye when the subject is as serious as an allegation of war crimes and crimes against humanity. Prohibition of alleged perpetrators is important to keep the Assembly free of possible contamination. The accused person can of course run for office any time in the future if cleared of charges.

OHCHR, NHRC

If Nepal’s civil society had been able to change the course of political decision-making by the syndicate through strong lobbying and public pressure, we would have been able to upturn the present election ordinance and put in proper vetting standards. As things stand, the Election Commission has surrendered to the Council of Minister despite its final original proposals; the Cabinet has gone belly-up before the four-party syndicate, which in turn has succumbed to the pressures put by Pushpa Kamal Dahal.

Because upturning the ordinance does not therefore seem feasible, we need a public campaign to convince the political parties—including both ‘cash’ and ‘dash’ Maoist parties, who will find it hardest—to debar those accused of atrocities. Fortunately, there are several sources which can without fear or favour make public lists of alleged perpetrators, whether they be soldiers, policemen, former insurgents or cadre.

We are fortunate that the documentation of war-time atrocities is somewhat better in Nepal than in many other societies that have passed through conflict. Through the publication of the Nepal Conflict Report, the UN human rights watchdog OHCHR has given us a glimpse into the horrific decade of 1996-2006. OHCHR headquarters in Geneva must now be asked to come to the aid of the Nepali electorate by releasing the details of the cases it has documented, including the names of those accused of excess.

The National Human Rights Commission (NHRC) has conducted extensive investigations into conflict-era brutalities by both sides, be it the cases of Doramba or Maadi, the Bhairabnath Battalliion, Kajol Khatun, Arjun Bahadur Lama or Guru Prasad Luitel. As a constitutional body meant to protect the public good, the NHRC must come out with a list of alleged perpetrators of the conflict era. Human rights groups such as Insec and the Advocacy Forum also have high-quality documentation of conflict era atrocities—a nation-wide effort to collate information and put up a master list of alleged perpetrators would be a great service.

There is no reason for the political parties to insist on foisting candidates with a questionable past on the voting public; there are enough to choose from. Even among the two Maoist parties, the number of alleged perpetrators is small (though it is vicious and vocal) and jettisoning them from the candidate list would help rather than harm the organisations. A public campaign might just make a dent and force politicians and comrades to listen to the voice of humanity and reason.

Posted on: 2013-08-02 08:46