Print Edition - 2014-12-18 | Oped
Truth and consequences
- For true reconciliation, human rights violations during the conflict must be confronted head on
Dec 17, 2014-Last month, the UN Human Rights Committee (UNHRC) ruled on three cases of enforced disappearance perpetrated during the ‘people’s war’. Tej Bahadur Bhandari, Gyanendra Tripathi and Jit Man Basnet were all disappeared by state forces during the insurgency. Bhandari and Tripathi remain missing while Basnet was released after 258 days in detention. The UNHCR ruling, which holds the Government of Nepal responsible for these disappearances and recommends
that authorities properly investigate the crimes, prosecute those responsible, and provide reparations to the families, represents a significant step forward for the more than 1,400 families that experienced the disappearance of a loved one during the conflict.
A landmark decision
While the government’s official response—to be given within 180 days—is uncertain, the UNHRC decision is a landmark for those that have been working on the issue of disappearance since the Comprehensive Peace Agreement (CPA) was signed in 2006. It casts renewed attention on the government’s poor handling of conflict-era disappearances and the lack of attention given to the families and their ongoing struggles. It is also particularly important in light of the forthcoming Commission for the Investigation of Enforced Disappearance. The Commission has been under discussion since 2006, when its formation was promised in the CPA. Progress has stalled many times, most recently due to the government’s continued inclusion of a provision that would allow possible amnesty for perpetrators despite repeated findings (June 1, 2007 and January 2, 2014) by the Supreme Court of Nepal stating that such provisions are illegal.
The UNHRC’s ruling provides credibility to the position of the victims’ community and support for their continued demands for truth, justice, and reparations for the families of the missing. The question now is one of implementation, particularly with regards to the forthcoming Commission. To date, the process of debate around the Commission and its formation has not engaged as it should with the community of families of those missing, failing to provide space for a truly victim-centered approach to transitional justice. Instead, the current approach, driven by a consensus among political parties that is rare on any other issue, shelters perpetrators and allows for the entrenching of a culture of impunity.
Alleged perpetrators have faced no consequences for their actions. In Tripathi’s case, the then Royal Nepal Army officer alleged to be responsible—Raju Basnet—has been promoted to full colonel in the Nepal Army. In Bhandari’s case, the alleged perpetrators—the former CDO of Lamjung, Shiva Nepal, Nepal Police DSP at the time Pitamber Adhikari, and Nepal Army officer Santosh Singh Thakuri—remain members of the same institutions.
Recently, on International Human Rights Day, the Chief of the Nepal Army, Gaurav Shumsher Rana, made a public statement arguing that the Nepal Army has already tried the officers alleged to have been involved through martial courts, and as such any future process, for example a Truth and Reconciliation Commission, should not address either these individuals or the institution of the Nepal Army. This shocking statement challenges the civilian courts—including the Supreme Court—the peace accords, and all norms of criminal justice and international human rights. Domestically, the impunity of members of such state institutions threatens Nepal’s future as a state that abides by the rule of law and thus its commitment to democracy itself. Internationally, there are
some sanctions that remain feasible, such as the UN refusing to deploy officers in peacekeeping missions. Indirectly, this demonstrates the range of threats that exist to human rights activists—including the family members of the disappeared—in a transitional process that remains controlled by perpetrators at both the political level and within state institutions.
Instead of assuring victims of their right to know the fate of loved ones, the authorities are committed to protect and promote alleged criminals in both the security forces and political institutions. In the absence of a Nepali law against enforced disappearance, there remains a fear of future disappearances. The Government of Nepal has never accepted or acknowledged the forced disappearance of Bhandari and Tripathi, and has gone as far as to destroy relevant evidence. When surviving family members are threatened for raising issues of accountability, there is no political response or reaction.
A time to act
This is a critical time in Nepal’s transition: the government has passed the Disappearance and TRC Act and is in the process of forming the two Commissions. However, commission formation is accompanied by an environment of mistrust between victims and authorities, and little hope in a politically controlled and cosmetic mechanism which seeks principally to serve perpetrators.
Families’ rights to truth and justice have been derailed by the politicisation of the transitional justice process and an absence of serious consideration of families’ dignity. A foundation for progress must begin with the recognition of crimes by all the parties in Parliament, as disappearance was not exclusively a government tactic during the conflict. There must be a commitment to work with the victim community in a meaningful way, allowing for input from affected families, while simultaneously creating mechanisms to protect victims and activists that allow them to speak the truth without fearing retribution. There must be further consideration of the livelihood needs of families that have been impacted by the loss of their loved ones. If there is to be meaningful progress and a chance for true reconciliation within Nepali society, the violations of the conflict must be confronted head on, they can no longer be ignored.
Bhandari is Chair of Committee for Social Justice and General Secretary of Conflict Victims Common Platform; Wilson is a development professional actively working on transitional justice issues in Nepal
Published: 18-12-2014 09:44