As we try to make sense of the heated debate on transitional justice, it might be worth revisiting an argument made by Simon Robins, a researcher who has done empirical work in Nepal on this issue. This piece highlights some of the points Robins raises in his article ‘Transitional Justice as an Elite Discourse’, which was published in 2012 in the journal Critical Asian Studies.

Instrumentalising discourse

Much has been written about how local elites in third-world countries instrumentalise global discourses of development, rights and liberal democracy to maintain the existing social structure rather than to change it. Robins suggests that the discourse of transitional justice in Nepal is no exception. Based on research conducted in Bardiya district in 2008, the article shows how the agendas prioritised by indigenous victims of conflict differ from the agendas of Kathmandu-based elites who use the language of ‘transitional justice’. Robins’ argument is based on the premise that “there is no such thing as human rights in the abstract” and that non-elites, too, are capable of theorising human rights.  

The study included interviews with 31 families of the disappeared in Bardiya, the district that saw the largest number of conflict-related disappearances. Of them, 21 were Tharu. The author begins with a striking observation that most victim families in Bardiya envisaged ‘human rights’ as a group of NGOs. As one respondent said, “Human rights have come to see us a few times, but have done nothing.” The families of the disappeared were found to have two main priorities: knowing the whereabouts of their loved ones, and economic support to meet their basic needs. “Victims articulate needs not rights,” Robins writes, “[and] the greater victims’ poverty and marginalisation the lower the priority they give to judicial process.” For most victims, justice is “much broader than prosecution.” Half of the victim families interviewed in Bardiya saw justice as “compensation, truth, or acknowledgment, rather than prosecution alone.” As the leader of the Bardiya family association noted, “To me, it seems that if we could make [the wife of a disappeared man] earn her food and clothes, she would go to Gulariya to chant slogans. If she does not have food to eat, she will have to confine herself to the struggle to feed herself.”

Narrow justice

In light of this analysis, how do we make sense of the human rights community’s overriding emphasis on prosecution? In Robins’ view, most human rights agencies “understand justice in a narrow prosecutorial way,” and their focus is on the perpetrator and atrocity rather than on victims and their needs. An influential section of Kathmandu’s human rights community wants to employ even “non-prosecutorial processes, such as the proposed Truth and Reconciliation Commission (TRC)” primarily as a means to further prosecution. This narrow legalistic approach to justice is based on the assumption that “the impact of a conflict born of exclusion, oppression, and grossly unequal distribution of power and resources can be addressed largely by a judicial process.” In this view, only particular forms of violence count as ‘violation of rights’.

Robins cites a 2008 report published by the International Center for Transitional Justice and Advocacy Forum to illuminate the gulf between those who shape the dominant discourse of transitional justice and most victims. While the data provided in the report shows that victims prioritised “compensation, education, basic needs (food, housing, clothing, health, and medical care), employment, and knowledge about the whereabouts of the disappeared,” the content of the report mainly revolves around “attitudes toward prosecutorial justice and the proposal of a Truth and Reconciliation Commission.” As Robins observes, “[T]he report tells us something of the priorities of those who prepared the survey but little about the fact that the priorities of victims are largely social and economic.”

Furthermore, the article suggests that representation of victims in discussions led by human rights NGOs is often tokenistic. In Robins’ observation, when NGOs invited victims to Kathmandu, their meetings “largely operated at a level beyond the typical Bardiya villager.” The victim would speak about their experience when requested and occasionally break down in tears, but they were not allowed to interfere with the NGOs’ agenda. The role of the victim in these supposedly ‘victim-centred’ discussions was merely symbolic. “No weight is given to their agenda or to the role their indigenousness played in their becoming victims,” Robins argues.

In isolation

The mainstream discourse of transitional justice thus ignores the degree to which ethnicity and caste determines the experience of victimhood in Nepali society. As the leader of the Conflict Victims Committee in Bardiya said, “Since the human rights of the people have been violated on a caste basis, I believe that human rights issues should be raised on a caste basis as well.” Here is an example of a non-elite person theorising human rights. One might ask, in the same vein: Why did Tharus make up the bulk of the disappeared? Or why did such large proportions of Janajatis and Dalits become victims of state violence during the conflict? A narrow focus on justice through prosecutions cannot address such questions.

It is a widely accepted principle that civil and political rights do not exist in isolation from social and economic rights. And yet, writes Robins, Nepal’s prominent human rights organisations have been reluctant to advocate for social and economic rights for the marginalised, the denial of which was at the heart of the decade-long conflict. It is common knowledge that most human rights organisations in Nepal, particularly at senior levels, are dominated by members of hill high caste groups. This also applies to the section of civil society that is vociferously demanding justice in the form of prosecution while opposing, as vociferously, every agenda that challenges entrenched caste and class hierarchies. As Robins points out, those promoting the agenda of transitional justice are the very elites who benefited from the inequalities that led to the conflict, and this contradiction intrinsically shapes the relationship between them and marginalised victims.

Whether or not one accepts Robins’ analysis in its entirety, he gives us enough reason to question the assumptions of those who have monopolised the human rights debate in Nepal.

Ghale is a freelance writer and researcher