Transitional Justice in Nepal

Interests, Victims and Agency

Yvette Selim

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351692199
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Studi asiatico-americani

The conflict in Nepal (1996 – 2006) resulted in an estimated 15, 000 deaths, 1, 300 disappearances, along with other serious human rights and humanitarian law violations. Demands for peace, democracy, accountability and development, have abounded in the post-conflict context. Although the conflict catalysed major changes in the social and political landscape in Nepal, the transitional justice (TJ) process has remained deeply contentious and fragmented.

This book provides an in-depth analysis of transitional justice process in Nepal. Drawing on interviews with a diverse range of stakeholders, including victims, ex-combatants, community members, human rights advocates, journalists and representatives from diplomatic missions, international organisations and the donor community, it reveals the differing viewpoints, knowledge, attitudes and preferences about TJ and other post-conflict issues in Nepal. The author develops an actor typology and an action spectrum, which can be used in Nepal and other post-conflict contexts. The actor typology identifies four main groups of TJ actors—experts, brokers, implementers and victims—and highlights who is making claims and on behalf of whom. The action spectrum, based on contentious politics literature and resistance literature, demonstrates the strategies actors use to shape the TJ process. This book argues that the potential of TJ lies in these dynamics of contention. It is by letting these dynamics play out that different conceptualisations of TJ can arise. While doing so may lead to practical challenges and produce situations that are normatively undesirable for some actors, particularly when certain political parties and national actors seem to 'hijack' TJ, remaining steadfast to the dominant TJ paradigm is also undesirable.

As the first book to provide a single case study on TJ in Nepal, it makes theoretical and empirical contributions to: TJ research in Nepal and the Asia-Pacific more broadly, the politics versus justice binary and the concept of victimhood, among others. It will be of interest to a wide range of scholars in the study of transitional justice, peace and conflict studies, human rights, sociology, political science, criminology, law, anthropology and South Asian Studies, as well as policy-makers and NGOs.

Part I

1 Introduction

Post-conflict societies are often confusing, complex, contested and changeable sites in which it is a challenge both to see what is going on and to chart appropriate strategies.

(McEvoy 2012, 312)

On 4 February 1996 the Maoists launched a People’s War in Nepal. Based on the ideology of Marxism–Leninism–Maoism, the Maoists adopted a guerrilla strategy initially concentrated in a few Maoist strongholds in western Nepal: Rolpa and Rukum (Mid-Western region), Sindhuli (Central region) and Gorkha (Western region). For approximately five years of the conflict the government of Nepal deemed the insurgency to be a security problem in the ambit of the police. However by 2001, as the Maoists increasingly gained more ground, the government elevated the insurgency to a military problem. Throughout the course of the conflict there were serious human rights violations committed by both sides of the conflict, including rape, torture, kidnapping, killings and enforced disappearances. There were an estimated 15,000 people killed, over 1300 people disappeared and numerous other incidents of human rights violations. On 21 November 2006, some ten years after the insurgency was launched, the Comprehensive Peace Agreement was signed, ushering major changes in the social and political landscape in Nepal. These included the official abolition of the monarchy, the declaration of Nepal as a federal democratic republic and the first Constituent Assembly elections in which the Maoists won the largest number of votes. It was during the peace negotiations that discussions commenced about transitional justice (TJ) in Nepal (Farasat and Hayner 2009; Tyynela 2014, 84).

Almost six years after the end of the conflict, I met with victims, ex-combatants, human rights activists, NGO workers, political representatives and donors, among others in Nepal. In the Maoist heartland in Rolpa I met a female ex-combatant from the People’s Liberation Army (the Maoist rebels’ army).¹ She explained to me that before the conflict she was active in student politics. Initially, she did not know much about Marxism and Leninism but, as she saw ‘educated people’ leaving their jobs to join the Maoists, she came to believe the party was ‘the greatest party with greatest slogans’. She and her friends became ‘diehard supporters’ and she told me: ‘We and the leaders had so many dreams for the people. Now we realise where have those dreams gone?’ This ex-combatant and other Maoist supporters I spoke with explained to me that they felt frustrated with the way the Maoist leaders had joined mainstream politics and become like the politicians and political parties against which they had waged the insurgency. An analogy offered by a Maoist guerrilla was that the resulting/post-war political situation was like a ‘farmer who worked the whole day every day and then reaped nothing’.²

In another interview I had the opportunity to hear the thoughts of two Nepali human rights workers involved in the TJ process.³ One moment particularly stands out: when I asked about the impact of politics on TJ in Nepal. They explained to me that two of the major political parties in Nepal, the Maoists and Nepali Congress, were evading calls for justice to ensure the protection of party leaders and their cadres. For one of the human rights workers, the interests of the political parties ‘finally met’ as they ‘realised that they both did terrible things’ during the conflict. The other respondent added, ‘[t]here is a Nepali proverb “kale kale milera kham bhale” which means “You are black, I am also; so let’s celebrate together.” This is self-protection.’ For both of these respondents this approach to TJ will not deliver justice. I came to realise that their observations encapsulated and highlighted the ways (elite) politicians made claims and bargained using the process, institutions and language and process of TJ.

It was also in Rolpa where I spoke with a widow in her tailoring shop. We sat on a wooden bench at the entrance of her shop and, with the hum of sewing machines in the background, we spoke about how her life had changed after the passing of her husband during the conflict.⁴ People occasionally passed her shop as she told me that she began her tailoring business after receiving livelihood training, offered to a small number of ‘conflict-affected women’. She now led a women’s group in her community for widows and wives of the disappeared. In the same district I spoke with a widower who was a Maoist Commissar. He relayed the details of his wife’s murder, which occurred while he was on combat duty in another district.⁵ He considered himself ‘emotionally’ to be a victim but because he was involved in the People’s Liberation Army he felt that he had worked and suffered for a larger cause. He had remarried and his family members wandered in and out of the rooms in his home while we spoke. It occurred to me that his story and other widowers’ stories about the impact of the conflict on their lives seemed to stand in juxtaposition with the day-to-day challenges and experiences I heard the widows and wives of the disappeared endured.

Conversations such as these provided me with a glimpse of the ways the conflict impacted people’s everyday lives, including their identities. They also provided insights into the ways key notions (such as politics, truth and justice) intersected in post-conflict Nepal and assisted to complicate simplistic assumptions and practices about TJ.

I cut short my trip to Nepal due to the instability that arose in the lead up to the Constitution deadline and the subsequent dissolution of the Constituent Assembly⁶ in May 2012. When I returned home I realised I had not uncovered ‘the answers’ I had hoped for. But this (research) conundrum reveals a great deal about TJ. It is a deeply messy, complicated affair. In the wake of conflict there are multiple and usually competing demands by the international community, politicians, human rights advocates, victims and community members, among others. Calls for peace, stability, accountability, democracy, development and economic growth abound, but are viewed differently by different stakeholders. TJ operates in this dynamic space seeking to deliver a gamut of objectives including peace, accountability, truth, reconciliation and justice. Determining what these notions mean to victims, affected communities, politicians and external actors – and indeed how to achieve these notions – is the source of much contention. However, what I came to realise is that much of the potential of TJ in fact lies in the contentions of and around it. While a limited number of TJ practitioners recognise this potential, often the way in which TJ is designed and operated belies the complexity of the politics on the ground.

This is what makes examining TJ so fascinating. As Orentlicher (2007, 10–11) asserts:

few issues have proved as vexing as the set of challenges bound up in the notion of transitional justice. Should – must? – societies attempt to bring to justice those who bear key responsibility for past atrocities? Does justice inevitably entail prosecutions or does its meaning instead turn upon each society’s historically and culturally specific experience? Besides trials, what roles can truth commissions, reparations programmes and other measures of transitional justice play in transforming a society that has been shattered by unspeakable crimes? Should – does? – international law constrain or shape States’ responses to crimes of the past? How do the answers to these questions turn upon the political constraints that define a nation’s transition? These questions only begin a long, and ever-lengthening, catalogue of quandaries that vex societies confronting the challenges bound up in political transition and the professionals who seek to assist them.

Turning to Nepal, when civil conflicts result in one of the warring sides becoming part of the government, can we really expect that this political party will pursue justice, particularly when this pursuit has the potential to incriminate the party’s leaders and cadres? How do we expect the current global TJ toolkit, which prioritises institutions, to be relevant to victims the majority of whom have historically been removed from the workings of the state? How do we understand what justice, peace and reconciliation mean in the context of Nepal?

It is against this backdrop that this book examines TJ in Nepal. There are three primary reasons why I contend Nepal provides an interesting and significant case study. First, rather than study (apparently) unequivocally successful TJ interventions or abject TJ failures, Nepal is compelling as a case because it sits somewhere in between. Initially, there was little knowledge or national support for pursuing TJ, however over time it is apparent that various actors, including politicians, NGO workers and victims’ groups and their members, have gradually come to see the ways the process of TJ can be utilised to advance particular, although at times deeply conflicting, interests. Second, large amounts of resources have been invested in TJ in Nepal. In some cases these resources may have been diverted from other post-conflict priorities, and more recently post-disaster priorities, yet there is a great deal of debate as to whether TJ lives up to even the most modest of goals or expectations. Third, there has been limited scholarly work about TJ in Nepal and indeed the Asia-Pacific more broadly. There have been two books that compare aspects of the TJ process in Nepal with another Asian case study: Timor-Leste (Robins 2013) and Afghanistan (Sajjad 2013).⁷ Robins’ participatory action research in Nepal and Timor-Leste explored the needs of families of the disappeared and the effectiveness of TJ mechanisms in meeting those needs. Sajjad undertook a comparative cross-national analysis in Nepal and Afghanistan. Her research focused on how local understandings are addressed in TJ processes. While my research has elements in common with the approaches adopted in these projects, it differs from and extends upon them. The majority of the research on TJ in Nepal has been produced by national and international NGOs. The remainder of the research has been dominated by anthropological and ethnographic research⁸ on Nepal that touches upon the conflict to varying extents but does not provide an in-depth analysis of TJ (see for example Shneiderman et al. 2016; Marsden 2011; Thapa 2003; Manandhar and Seddon 2010; Pettigrew 2012; Pettigrew and Adhikari 2009). This book seeks to fill this gap.

I argue that TJ in Nepal is a complex, multifaceted process, which eschews absolute characterisations of success or failure (e.g. being ‘still-born’⁹). While the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons were only established in 2015, some eight years since the end of the conflict, much transpired before this time with various politicians, victims, donors and human rights advocates using the process and language of TJ to promote their interests. It is through an in-depth examination of these actors, interests, interactions and their post-conflict priorities that the limits and potential of TJ in Nepal become evident. Given that TJ efforts are continuing in Nepal, I argue that TJ actors need to be cognisant of the ways they engage with each other and seek to advance their interests. This constantly shifting and uncertain ground does not fit well with best practices, toolboxes and ‘cut and paste’ projects that are ubiquitous in peacebuilding and development, but it is in these margins and intersections where richer, more context-specific – and indeed victim-centric – approaches can be found. The next section outlines the evolution of TJ to contextualise how TJ discussions arose in Nepal.

Situating transitional justice

The evolution of transitional justice

It was not until the early 1990s that the term ‘transitional justice’ was coined; however, most literature traces the beginnings of TJ to the aftermath of the Second World War with the Nuremberg and Tokyo military tribunals. From the late 1980s the term gained traction following the regime changes in Latin America and Eastern Europe, often referred to as the third wave of democratisation (see Kora 2010; Teitel 2014; Anders and Zenker 2014; Lawther, Moffett, and Jacobs 2016). During this period TJ developed through the ‘set of interactions’ between lawyers, human rights advocates, legal and comparative politics scholars and others dealing with transitional contexts (Arthur 2009). In this context of political change, justice ‘was generally conceived in terms of the establishment of trials and truth commissions to address past human rights violations’ (Jeffery and Kim 2013, 4).

The mid-1990s saw a period of increased civil and ethnic conflicts (e.g. Rwanda, the Balkans and Timor-Leste). During this time the nature of ‘transition’ in TJ began to expand into areas of peacebuilding and conflict resolution (Jeffery and Kim 2013, 4). Jeffery and Kim (2013, 5) explain:

what followed was not simply the encroachment of transitional justice into conflict resolution and peace building, but the simultaneous redefinition of peace building to include the pursuit of justice as a key priority. The result was the establishment of this second type of transition from conflict to peace as a key concern of transitional justice along with justice associated with transitions from authoritarian rule.

It was also by the mid-1990s that an identifiable toolkit of TJ mechanisms – truth-seeking, prosecutions, memorialisation initiatives, vetting and lustration and reparations – had merged.

As TJ came to be applied to post-authoritarian and to post-conflict settings, it rapidly evolved from a study within human rights law to a ‘field’ of study and practice driven by practitioners and scholars from a diverse range of disciplines (Bell 2009). This shift to a ‘field’ of interdisciplinary practice and scholarship has been influenced by a range of disciplines including anthropology, development studies, cultural studies, education, history, ethics, philosophy, theology, psychology and sociology (Bell 2009, 9). For example, efforts to clarify the meaning of reconciliation in TJ discussions has resulted in a range of definitions, typologies and categories being offered by political scientists, peace studies scholars, theologians, p...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Acknowledgements
• List of abbreviations
• Part I
• PART II
• Index