In January 2014 Nepal’s Supreme Court passed a directive to restructure the still unestablished Truth and Reconciliation Commission (TRC), most importantly prohibiting potential amnesties for serious crimes. Over seven years since the decade-long civil war, this represented some hope for tired Nepalis to finally end impunity for war-time crimes.
However, criticism at the 110th session of the UN Human Rights Committee in March 2014 nearly 3 months later illustrates continuing slow progress in the reforms, and demonstrations and hunger strikes reflect victims’ deep frustration with this stalling. In April, TRC legislation was finally voted through the Constituent Assembly, but controversy remains.
History of violence
Following the war, the 2006 Comprehensive Peace Agreement (CPA) provided for a TRC. This has, however, been long delayed by political power struggles, and military and political leaders’ reluctance to open their war-time pasts to scrutiny. Post-war transition has been slow and shaky, and prospects looked even bleaker with the Constituent Assembly’s dissolution in early 2012, after running out several extensions of its mandate to draft a new constitution. November 2013’s successfully-held Constituent Assembly elections, though, and the fresh parliamentary composition, are hopefully the basis for progress in transition and development.
During the war an estimated 17,800 died according to Nepal’s government, hundreds were forcibly disappeared, and thousands more suffered injury, torture, and rape. Civilians were targeted with extrajudicial killings and torture by both state security services and rebels, in battles and repression of enemy support. Unfortunately, corruption and torture in detention continue to be serious post-war problems among the police, army, and party cadres.
While the Maoists’ People’s Liberation Army has since been dissolved, the Nepali Army remains, and has changed little since the undemocratic monarchist regime save for its name losing ‘Royal’. The military was under monarchist control during the war, and helped to suppress the 2006 Jana Andolan II mass popular protests against the last king Gyanendra’s autocratic and militaristic rule. It has long faced calls to democratize and ‘right-size’. It lacks a culture of accountability and has been resistant to changes outlined in the CPA, including down-sizing and establishing a TRC.
Numerous post-war politicians, particularly those in war-time positions of power on either side, have been similarly slow to act, and have even used broad discretionary powers in transitional legislation to interfere in investigation, essentially avoiding effective prosecution. This lack of progress has been exacerbated with parties’ power-play and their apparent wariness of antagonizing the military.
A successful TRC depends on the cooperation of military figures and politicians, especially from either Maoist party – UCPN-M or CPN-M – who likely fear their own investigation. Despite some judicial counter-efforts, successive post-war governments have withdrawn hundreds of cases, including many murder charges, often on the basis that security personnel were “acting in good faith”, especially with politically-affiliated individuals.
The lack of any effective prosecution of war-time crimes is a major injustice to victims, and this impunity could potentially cause serious unrest and undermine Nepal’s fragile transition towards stronger democratic institutions.
Supreme Court safeguard
In March 2013 controversial TRC legislation was opaquely pushed through. It merged the TRC and disappearance commissions and, despite CPA and international legal obligations, gave wide scope for arbitrary decisions on amnesty even for serious crimes. The Supreme Court suspended it two weeks later, responding to wide civil society criticism and petitioners demanding public consultation and restriction of amnesty powers.
The January 2014 Supreme Court ruling then fully overturned this legislation. This limited amnesty provisions, separated the TRC and disappearance commission to ensure their effective implementation, made suspected human rights violators ineligible for commission appointment, and reduced the politically-appointed Attorney General’s discretionary power to decide on prosecution.
These were important decisions for transitional justice and independent investigation, and their passing early in the new Constituent Assembly’s tenure put the long-neglected issue into fresh focus. Civil society, legal professionals, and victims’ groups, have also made repeated public demands for truth and justice, and maintained pressure with protests and efforts to record testimonies of abuses.
Legislation to establish a TRC and Commission for Inquiry of Disappearances was voted through on 25 April, although opposed by some smaller parties. Nepali and international rights groups widely criticized it for having effectively just lightly reworked the version already rejected by Nepal’s Supreme Court, and quickly demanded that it be significantly amended and made "victims-friendly". Some changes were included, but were insufficient, and even largely disregarded the recommendations of the government’s own taskforce. The bill separated the TRC and disappearance commission, but still failed to address vague wording allowing high discretion on amnesties even for serious crimes.
UCPN-M Maoists have often called for a TRC, but with amnesty provisions. While electorally weakened after November 2013 polls, the UCPN-M can still dissent to hinder comprehensive investigation, and in mid-April it stalled the Constituent Assembly over the prosecution of Maoist cadres in regular courts outside of the TRC. The hardliner splinter-party CPN-M is relatively small but could cause public disruption or use intimidation if members feel threatened. With upcoming local-level elections this year parties could work on this issue to gain support but, unfortunately, other parties have also previously resisted comprehensive TRC legislation.
A fragile peace: Maoists protested following the resignation of former Prime Minister Pushpa Kamal Dahal "Prachanda" in 2009 after his move to fire Army Chief General Rookmangud Katawal was opposed by President Ram Baran Yadav. Katawal was fired for refusing to integrate former Maoist rebel soldiers into the regular army, a key part of a 2006 peace deal that ended a decade of civil war.
Some politicians repeatedly emphasize the paramount importance of reconciliation and national unity. This is undoubtedly necessary for transition and durable peace, and victim support must be addressed alongside investigation. However, reconciliation must not be used as a screen for impunity for serious crimes, undermining participatory truth-seeking, reparations, and rule of law.
Challenging a culture of impunity
The transition has not yet overcome a deep culture of impunity, despite pressure on political and military leaderships. International criticism is rejected by some as foreign interference, but claims of threatened sovereignty appear as a rather transparent attempt to dodge accountability, especially with heavy criticism from domestic rights and victims groups, and even scepticism from some members of the largest three parties. Furthermore, the military, sometimes directly contravening Supreme Court orders, has continued to be criticized for shielding and even promoting personnel accused of crimes, while reportedly punishing those taking positive steps towards investigation.
Military figures may exert pressure on politicians to weaken investigation, but with public pressure visibly against this, this influence may be gradually tempered. Similarly, they lack the international support of past years, and accusations of human rights abuses and endemic impunity continue to taint the military’s image. In January 2013, the UK detained Colonel Kumar Lama on war-time torture charges, meeting criticism from Nepal’s military and government but praise from human rights campaigners. Indeed Sheila Varadan, an International Commission of Jurists advisor, warned that “there will be more Lamas” if Nepal does not legally reform to address war-time crimes.
After over seven years of slow progress, political and military figures who continually hinder truth-seeking, against vocal criticism from Nepali and international civil society, are likely to lose further popular credibility. A seriously flawed transitional justice process would only worsen existing socio-political tensions, and could also damage Nepal’s image globally or threaten international aid and assistance. Participation in UN missions could be restricted, to which Nepal has contributed significantly and which are sources of army funds, and personnel may avoid such international trips if they risk criticism or detention.
Under the monarchy’s militarist system the army was powerful, important for cooperation with influential India, and little troubled by accountability. Since the war, having defended the defunct monarchy, repressed Jana Andolan II, and been subjected to demands for democratization and investigation, the military would invite further criticism and isolation if they continue to indefinitely resist accountability. Nepali citizens have long been denied justice, but continued civil society pressure on the new, long-delayed Constituent Assembly will hopefully improve parliamentary efforts to give the dragging peace process and long-awaited TRC some resolution.